G.R. No. L-961 September 21, 1949
Moreover, the price of P110,000 in Japanese military notes, as of
BLANDINA GAMBOA HILADO, petitioner,
vs.
JOSE GUTIERREZ DAVID, VICENTE J. FRANCISCO, JACOB ASSAD and SELIM
JACOB ASSAD,respondents.
Delgado, Dizon and Flores for petitioner.
Vicente J. Francisco for respondents.
TUASON, J.:
It appears that on April 23, 1945, Blandina Gamboa Hilado brought an action
against Selim Jacob Assad to annul the sale of several houses and lot
executed during the Japanese occupation by Mrs. Hilado's now deceased
husband.
On May 14, Attorneys Ohnick, Velilla and Balonkita filed an answer on behalf
of the defendant; and on June 15, Attorneys Delgado, Dizon, Flores and
Rodrigo registered their appearance as counsel for the plaintiff. On October
5, these attorneys filed an amended complaint by including Jacob Assad as
party defendant.
On January 28, 1946, Attorney Francisco entered his appearance as attorney
of record for the defendant in substitution for Attorney Ohnick, Velilla and
Balonkita who had withdrawn from the case.
On May 29, Attorney Dizon, in the name of his firm, wrote Attorney Francisco
urging him to discontinue representing the defendants on the ground that
their client had consulted with him about her case, on which occasion, it was
alleged, "she turned over the papers" to Attorney Francisco, and the latter
sent her a written opinion. Not receiving any answer to this suggestion,
Attorney Delgado, Dizon, Flores and Rodrigo on June 3, 1946, filed a formal
motion with the court, wherein the case was and is pending, to disqualify
Attorney Francisco.
Attorney Francisco's letter to plaintiff, mentioned above and identified as
Exhibit A, is in full as follows:
VICENTE J. FRANCISCO
Attorney-at-Law
1462 Estrada, Manila
July 13, 1945.
Mrs. Blandina Gamboa Hilado
Manila, Philippines
My dear Mrs. Hilado:
From the papers you submitted to me in connection with civil
case No. 70075 of the Court of First Instance of Manila, entitled
"Blandina Gamboa Hilado vs. S. J. Assad," I find that the basic facts
which brought about the controversy between you and the
defendant therein are as follows:
(a) That you were the equitable owner of the property described
in the complaint, as the same was purchased and/or built with
funds exclusively belonging to you, that is to say, the houses and
lot pertained to your paraphernal estate;
(b) That on May 3, 1943, the legal title to the property was with
your husband, Mr. Serafin P. Hilado; and
(c) That the property was sold by Mr. Hilado without your
knowledge on the aforesaid date of May 3, 1943.
Upon the foregoing facts, I am of the opinion that your action
against Mr. Assad will not ordinarily prosper. Mr. Assad had the
right to presume that your husband had the legal right to dispose
of the property as the transfer certificate of title was in his name.
May 3, 1943, does not quite strike me as so grossly inadequate as
to warrant the annulment of the sale. I believe, lastly, that the
transaction cannot be avoided merely because it was made during
the Japanese occupation, nor on the simple allegation that the
real purchaser was not a citizen of the Philippines. On his last
point, furthermore, I expect that you will have great difficulty in
proving that the real purchaser was other than Mr. Assad,
considering that death has already sealed your husband's lips and
he cannot now testify as to the circumstances of the sale.
For the foregoing reasons, I regret to advise you that I cannot
appear in the proceedings in your behalf. The records of the case
you loaned to me are herewith returned.
Yours very truly,
(Sgd.) VICENTE J. FRANCISCO
VJF/Rag.
In his answer to plaintiff's attorneys' complaint, Attorney Francisco alleged
that about May, 1945, a real estate broker came to his office in connection
with the legal separation of a woman who had been deserted by her
husband, and also told him (Francisco) that there was a pending suit brought
by Mrs. Hilado against a certain Syrian to annul the sale of a real estate which
the deceased Serafin Hilado had made to the Syrian during the Japanese
occupation; that this woman asked him if he was willing to accept the case if
the Syrian should give it to him; that he told the woman that the sales of real
property during the Japanese regime were valid even though it was paid for
in Japanese military notes; that this being his opinion, he told his visitor he
would have no objection to defending the Syrian;
That one month afterwards, Mrs. Hilado came to see him about a suit she
had instituted against a certain Syrian to annul the conveyance of a real
estate which her husband had made; that according to her the case was in
the hands of Attorneys Delgado and Dizon, but she wanted to take it away
from them; that as he had known the plaintiff's deceased husband he did not
hesitate to tell her frankly that hers was a lost case for the same reason he
had told the broker; that Mrs. Hilado retorted that the basis of her action
was not that the money paid her husband was Japanese military notes, but
that the premises were her private and exclusive property; that she
requested him to read the complaint to be convinced that this was the
theory of her suit; that he then asked Mrs. Hilado if there was a Torrens title
to the property and she answered yes, in the name of her husband; that he
told Mrs. Hilado that if the property was registered in her husband's favor,
her case would not prosper either;
That some days afterward, upon arrival at his law office on Estrada street, he
was informed by Attorney Federico Agrava, his assistant, that Mrs. Hilado
had dropped in looking for him and that when he, Agrava, learned that Mrs.
Hilado's visit concerned legal matters he attended to her and requested her
to leave the "expediente" which she was carrying, and she did; that he told
Attorney Agrava that the firm should not handle Mrs. Hilado's case and he
should return the papers, calling Agrava's attention to what he (Francisco)
already had said to Mrs. Hilado;
That several days later, the stenographer in his law office, Teofilo Ragodon,
showed him a letter which had been dictated in English by Mr. Agrava,
returning the "expedients" to Mrs. Hilado; that Ragodon told him (Attorney
Francisco) upon Attorney Agrava's request that Agrava thought it more
proper to explain to Mrs. Hilado the reasons why her case was rejected; that
he forthwith signed the letter without reading it and without keeping it for a
minute in his possession; that he never saw Mrs. Hilado since their last
meeting until she talked to him at the Manila Hotel about a proposed
extrajudicial settlement of the case;
That in January, 1946, Assad was in his office to request him to handle his
case stating that his American lawyer had gone to the States and left the case
in the hands of other attorneys; that he accepted the retainer and on January
28, 1946, entered his appearance.
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Attorney Francisco filed an affidavit of stenographer Ragodon in
corroboration of his answer.
The judge trying the case, Honorable Jose Gutierrez David, later promoted to
the Court of Appeals, dismissed the complaint. His Honor believed that no
information other than that already alleged in plaintiff's complaint in the
main cause was conveyed to Attorney Francisco, and concluded that the
intercourse between the plaintiff and the respondent did not attain the point
of creating the relation of attorney and client.
Stripped of disputed details and collateral matters, this much is undoubted:
That Attorney Francisco's law firm mailed to the plaintiff a written opinion
over his signature on the merits of her case; that this opinion was reached on
the basis of papers she had submitted at his office; that Mrs. Hilado's
purpose in submitting those papers was to secure Attorney Francisco's
professional services. Granting the facts to be no more than these, we agree
with petitioner's counsel that the relation of attorney and client between
Attorney Francisco and Mrs. Hilado ensued. The following rules accord with
the ethics of the legal profession and meet with our approval:
In order to constitute the relation (of attorney and client) a
professional one and not merely one of principal and agent, the
attorneys must be employed either to give advice upon a legal
point, to prosecute or defend an action in court of justice, or to
prepare and draft, in legal form such papers as deeds, bills,
contracts and the like. (Atkinson vs. Howlett, 11 Ky. Law Rep.
(abstract), 364; cited in Vol. 88, A. L. R., p. 6.)
To constitute professional employment it is not essential that the
client should have employed the attorney professionally on any
previous occasion. . . . It is not necessary that any retainer should
have been paid, promised, or charged for; neither is it material
that the attorney consulted did not afterward undertake the case
about which the consultation was had. If a person, in respect to
his business affairs or troubles of any kind, consults with his
attorney in his professional capacity with the view to obtaining
professional advice or assistance, and the attorney voluntarily
permits or acquiesces in such consultation, then the professional
employment must be regarded as established. . . . (5 Jones
Commentaries on Evidence, pp. 4118-4119.)
An attorney is employed-that is, he is engaged in his professional
capacity as a lawyer or counselor-when he is listening to his
client's preliminary statement of his case, or when he is giving
advice thereon, just as truly as when he is drawing his client's
pleadings, or advocating his client's cause in open court. (Denver
Tramway Co. vs. Owens, 20 Colo., 107; 36 P., 848.)
Formality is not an essential element of the employment of an
attorney. The contract may be express or implied and it is
sufficient that the advice and assistance of the attorney is sought
and received, in matters pertinent to his profession. An
acceptance of the relation is implied on the part of the attorney
from his acting in behalf of his client in pursuance of a request by
the latter. (7 C. J. S., 848-849; see Hirach Bros. and Co. vs. R. E.
Kennington Co., 88 A. L. R., 1.)
Section 26 (e), Rule 123 of the Rules of Court provides that "an attorney
cannot, without the consent of his client, be examined as to any
communication made by the client to him, or his advice given thereon in the
course of professional employment;" and section 19 (e) of Rule 127 imposes
upon an attorney the duty "to maintain inviolate the confidence, and at
every peril to himself, to preserve the secrets of his client." There is no law or
provision in the Rules of Court prohibiting attorneys in express terms from
acting on behalf of both parties to a controversy whose interests are
opposed to each other, but such prohibition is necessarily implied in the
injunctions above quoted. (In re De la Rosa, 27 Phil., 258.) In fact the
prohibition derives validity from sources higher than written laws and rules.
As has been aptly said in In re Merron, 22 N. M., 252, L.R.A., 1917B, 378,
"information so received is sacred to the employment to which it pertains,"
and "to permit it to be used in the interest of another, or, worse still, in the
interest of the adverse party, is to strike at the element of confidence which
lies at the basis of, and affords the essential security in, the relation of
attorney and client."
That only copies of pleadings already filed in court were furnished to
Attorney Agrava and that, this being so, no secret communication was
transmitted to him by the plaintiff, would not vary the situation even if we
should discard Mrs. Hilado's statement that other papers, personal and
private in character, were turned in by her. Precedents are at hand to
support the doctrine that the mere relation of attorney and client ought to
preclude the attorney from accepting the opposite party's retainer in the
same litigation regardless of what information was received by him from his
first client.
The principle which forbids an attorney who has been engaged to
represent a client from thereafter appearing on behalf of the
client's opponent applies equally even though during the
continuance of the employment nothing of a confidential nature
was revealed to the attorney by the client. (Christian vs. Waialua
Agricultural Co., 30 Hawaii, 553, Footnote 7, C. J. S., 828.)
Where it appeared that an attorney, representing one party in
litigation, had formerly represented the adverse party with
respect to the same matter involved in the litigation, the court
need not inquire as to how much knowledge the attorney
acquired from his former during that relationship, before refusing
to permit the attorney to represent the adverse party. (Brown vs.
Miller, 52 App. D. C. 330; 286, F. 994.)
In order that a court may prevent an attorney from appearing
against a former client, it is unnecessary that the ascertain in
detail the extent to which the former client's affairs might have a
bearing on the matters involved in the subsequent litigation on
the attorney's knowledge thereof. (Boyd vs. Second Judicial Dist.
Court, 274 P., 7; 51 Nev., 264.)
This rule has been so strictly that it has been held an attorney, on
terminating his employment, cannot thereafter act as counsel
against his client in the same general matter, even though, while
acting for his former client, he acquired no knowledge which
could operate to his client's disadvantage in the subsequent
adverse employment. (Pierce vs. Palmer [1910], 31 R. I., 432; 77
Atl., 201, Ann. Cas., 1912S, 181.)
Communications between attorney and client are, in a great number of
litigations, a complicated affair, consisting of entangled relevant and
irrelevant, secret and well known facts. In the complexity of what is said in
the course of the dealings between an attorney and a client, inquiry of the
nature suggested would lead to the revelation, in advance of the trial, of
other matters that might only further prejudice the complainant's cause. And
the theory would be productive of other un salutary results. To make the
passing of confidential communication a condition precedent; i.e., to make
the employment conditioned on the scope and character of the knowledge
acquired by an attorney in determining his right to change sides, would not
enhance the freedom of litigants, which is to be sedulously fostered, to
consult with lawyers upon what they believe are their rights in litigation. The
condition would of necessity call for an investigation of what information the
attorney has received and in what way it is or it is not in conflict with his new
position. Litigants would in consequence be wary in going to an attorney, lest
by an unfortunate turn of the proceedings, if an investigation be held, the
court should accept the attorney's inaccurate version of the facts that came
to him. "Now the abstinence from seeking legal advice in a good cause is by
hypothesis an evil which is fatal to the administration of justice." (John H.
Wigmore's Evidence, 1923, Section 2285, 2290, 2291.)
Hence the necessity of setting down the existence of the bare relationship of
attorney and client as the yardstick for testing incompatibility of interests.
This stern rule is designed not alone to prevent the dishonest practitioner
from fraudulent conduct, but as well to protect the honest lawyer from
unfounded suspicion of unprofessional practice. (Strong vs. Int. Bldg., etc.;
Ass'n, 183 Ill., 97; 47 L.R.A., 792.) It is founded on principles of public policy,
on good taste. As has been said in another case, the question is not
necessarily one of the rights of the parties, but as to whether the attorney
has adhered to proper professional standard. With these thoughts in mind, it
behooves attorneys, like Caesar's wife, not only to keep inviolate the client's
confidence, but also to avoid the appearance of treachery and double-
dealing. Only thus can litigants be encouraged to entrust their secrets to
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their attorneys which is of paramount importance in the administration of
justice.
So without impugning respondent's good faith, we nevertheless can not
sanction his taking up the cause of the adversary of the party who had
sought and obtained legal advice from his firm; this, not necessarily to
prevent any injustice to the plaintiff but to keep above reproach the honor
and integrity of the courts and of the bar. Without condemning the
respondents conduct as dishonest, corrupt, or fraudulent, we do believe that
upon the admitted facts it is highly in expedient. It had the tendency to bring
the profession, of which he is a distinguished member, "into public disrepute
and suspicion and undermine the integrity of justice."
There is in legal practice what called "retaining fee," the purpose of which
stems from the realization that the attorney is disabled from acting as
counsel for the other side after he has given professional advice to the
opposite party, even if he should decline to perform the contemplated
services on behalf of the latter. It is to prevent undue hardship on the
attorney resulting from the rigid observance of the rule that a separate and
independent fee for consultation and advice was conceived and authorized.
"A retaining fee is a preliminary fee given to an attorney or counsel to insure
and secure his future services, and induce him to act for the client. It is
intended to remunerate counsel for being deprived, by being retained by one
party, of the opportunity of rendering services to the other and of receiving
pay from him, and the payment of such fee, in the absence of an express
understanding to the contrary, is neither made nor received in payment of
the services contemplated; its payment has no relation to the obligation of
the client to pay his attorney for the services which he has retained him to
perform." (7 C.J.S., 1019.)
The defense that Attorney Agrava wrote the letter Exhibit A and that
Attorney Francisco did not take the trouble of reading it, would not take the
case out of the interdiction. If this letter was written under the circumstances
explained by Attorney Francisco and he was unaware of its contents, the fact
remains that his firm did give Mrs. Hilado a formal professional advice from
which, as heretofore demonstrated, emerged the relation of attorney and
client. This letter binds and estop him in the same manner and to the same
degree as if he personally had written it. An information obtained from a
client by a member or assistant of a law firm is information imparted to the
firm. (6 C. J., 628; 7 C. J. S., 986.) This is not a mere fiction or an arbitrary rule;
for such member or assistant, as in our case, not only acts in the name and
interest of the firm, but his information, by the nature of his connection with
the firm is available to his associates or employers. The rule is all the more to
be adhered to where, as in the present instance, the opinion was actually
signed by the head of the firm and carries his initials intended to convey the
impression that it was dictated by him personally. No progress could be
hoped for in "the public policy that the client in consulting his legal adviser
ought to be free from apprehension of disclosure of his confidence," if the
prohibition were not extended to the attorney's partners, employers or
assistants.
The fact that petitioner did not object until after four months had passed
from the date Attorney Francisco first appeared for the defendants does not
operate as a waiver of her right to ask for his disqualification. In one case,
objection to the appearance of an attorney was allowed even on appeal as a
ground for reversal of the judgment. In that case, in which throughout the
conduct of the cause in the court below the attorney had been suffered so to
act without objection, the court said: "We are all of the one mind, that the
right of the appellee to make his objection has not lapsed by reason of failure
to make it sooner; that professional confidence once reposed can never be
divested by expiration of professional employment." (Nickels vs. Griffin, 1
Wash. Terr., 374, 321 A. L. R. 1316.)
The complaint that petitioner's remedy is by appeal and not by certiorari
deserves scant attention. The courts have summary jurisdiction to protect
the rights of the parties and the public from any conduct of attorneys
prejudicial to the administration of the justice. The summary jurisdiction of
the courts over attorneys is not confined to requiring them to pay over
money collected by them but embraces authority to compel them to do
whatever specific acts may be incumbent upon them in their capacity of
attorneys to perform. The courts from the general principles of equity and
policy, will always look into the dealings between attorneys and clients and
guard the latter from any undue consequences resulting from a situation in
which they may stand unequal. The courts acts on the same principles
whether the undertaking is to appear, or, for that matter, not to appear, to
answer declaration, etc. (6 C.J., 718 C.J.S., 1005.) This summary remedy
against attorneys flows from the facts that they are officers of the court
where they practice, forming a part of the machinery of the law for the
administration of justice and as such subject to the disciplinary authority of
the courts and to its orders and directions with respect to their relations to
the court as well as to their clients. (Charest vs. Bishop, 137 Minn., 102; 162,
N.W., 1062, Note 26, 7 C. J. S., 1007.) Attorney stand on the same footing as
sheriffs and other court officers in respect of matters just mentioned.
We conclude therefore that the motion for disqualification should be
allowed. It is so ordered, without costs.
MA. LUISA HADJULA,
Complainant,
- versus -
ATTY. ROCELES F. MADIANDA,
Respondent.
DECISION
GARCIA, J.:
Under consideration is Resolution No. XVI-2004-472 of the Board of
Governors, Integrated Bar of the Philippines (IBP), relative to the complaint
for disbarment filed by herein complainant Ma. Luisa Hadjula against
respondent Atty. Roceles F. Madianda.
The case started when, in an AFFIDAVIT-COMPLAINT[1] bearing
date September 7, 2002 and filed with the IBP Commission on Bar Discipline,
complainant charged Atty. Roceles F. Madianda with violation of Article
209[2] of the Revised Penal Code and Canon Nos. 15.02 and 21.02 of the Code
of Professional Responsibility.
In said affidavit-complaint, complainant alleged that she and respondent
used to be friends as they both worked at the Bureau of Fire Protection (BFP)
whereat respondent was the Chief Legal Officer while she was the Chief
Nurse of the Medical, Dental and Nursing Services. Complainant claimed
that, sometime in 1998, she approached respondent for some legal advice.
Complainant further alleged that, in the course of their conversation which
was supposed to be kept confidential, she disclosed personal secrets and
produced copies of a marriage contract, a birth certificate and a baptismal
certificate, only to be informed later by the respondent that she
(respondent) would refer the matter to a lawyer friend. It was malicious, so
complainant states, of respondent to have refused handling her case only
after she had already heard her secrets.
Continuing, complainant averred that her friendship with respondent soured
after her filing, in the later part of 2000, of criminal and disciplinary actions
against the latter. What, per complainants account, precipitated the filing
was when respondent, then a member of the BFP promotion board,
demanded a cellular phone in exchange for the complainants promotion.
According to complainant, respondent, in retaliation to the filing of the
aforesaid actions, filed a COUNTER COMPLAINT[3] with the Ombudsman
charging her (complainant)with violation of Section 3(a) of Republic Act No.
3019,[4] falsification of public documents and immorality, the last two charges
being based on the disclosures complainant earlier made to respondent. And
also on the basis of the same disclosures, complainant further stated, a
disciplinary case was also instituted against her before the Professional
Regulation Commission.
Complainant seeks the suspension and/or disbarment of respondent for the
latters act of disclosing personal secrets and confidential information she
revealed in the course of seeking respondents legal advice.
In an order dated October 2, 2002, the IBP Commission on Bar Discipline
required respondent to file her answer to the complaint.
In her answer, styled as COUNTER-AFFIDAVIT,[5] respondent denied giving
legal advice to the complainant and dismissed any suggestion about the
existence of a lawyer-client relationship between them. Respondent also
stated the observation that the supposed confidential data and sensitive
documents adverted to are in fact matters of common knowledge in the
BFP. The relevant portions of the answer read:
3

5. I specifically deny the allegation of
F/SUPT. MA. LUISA C. HADJULA in paragraph 4 of her
AFFIDAVIT-COMPLAINT for reason that she never WAS
MY CLIENT nor we ever had any LAWYER-CLIENT
RELATIONSHIP that ever existed ever since and that
never obtained any legal advice from me regarding her
PERSONAL PROBLEMS or PERSONAL SECRETS. She
likewise never delivered to me legal documents much
more told me some confidential information or
secrets. That is because I never entertain LEGAL
QUERIES or CONSULTATION regarding PERSONAL
MATTERS since I know as a LAWYER of the Bureau of
Fire Protection that I am not allowed to privately
practice law and it might also result to CONFLICT OF
INTEREST. As a matter of fact, whenever there will be
PERSONAL MATTERS referred to me, I just referred
them to private law practitioners and never entertain
the same, NOR listen to their stories or examine or
accept any document.
9. I specifically deny the allegation of
F/SUPT. MA. LUISA C. HADJULA in paragraph 8 of her
AFFIDAVIT-COMPLAINT, the truth of the matter is that
her ILLICIT RELATIONSHIP and her illegal and unlawful
activities are known in the Bureau of Fire Protection
since she also filed CHILD SUPPORT case against her
lover where she has a child .
Moreover, the alleged DOCUMENTS she
purportedly have shown to me sometime in 1998, are
all part of public records .
Furthermore, F/SUPT. MA. LUISA C.
HADJULA, is filing the instant case just to get even with
me or to force me to settle and withdraw the CASES I
FILED AGAINST HER since she knows that she will
certainly be DISMISSED FROM SERVICE, REMOVED
FROM THE PRC ROLL and CRIMINALLY CONVICTED of
her ILLICIT, IMMORAL, ILLEGAL and UNLAWFUL ACTS.
On October 7, 2004, the Investigating Commissioner of the IBP Commission
on Bar Discipline came out with a Report and Recommendation, stating that
the information related by complainant to the respondent is protected under
the attorney-client privilege communication. Prescinding from this postulate,
the Investigating Commissioner found the respondent to have violated legal
ethics when she [revealed] information given to her during a legal
consultation, and accordingly recommended that respondent be
reprimanded therefor, thus:
WHEREFORE, premises considered, it is respectfully
recommended that respondent Atty. Roceles
Madianda be reprimanded for revealing the secrets of
the complainant.
On November 4, 2004, the IBP Board of Governors issued Resolution No. XVI-
2004-472 reading as follows:
RESOLVED to ADOPT and APPROVE, as it is
hereby ADOPTED and APPROVED, the Report and
Recommendation of the Investigating Commissioner of
the above-entitled case, herein made part of this
Resolution as Annex A; and , finding the
recommendation fully supported by the evidence on
record and the applicable laws and rules, and
considering the actuation of revealing information
given to respondent during a legal consultation, Atty.
Roceles Madianda is hereby REPRIMANDED.
We AGREE with the recommendation and the premises holding it together.
As it were, complainant went to respondent, a lawyer who
incidentally was also then a friend, to bare what she considered personal
secrets and sensitive documents for the purpose of obtaining legal advice
and assistance. The moment complainant approached the then receptive
respondent to seek legal advice, a veritable lawyer-client relationship
evolved between the two. Such relationship imposes upon the lawyer certain
restrictions circumscribed by the ethics of the profession. Among the
burdens of the relationship is that which enjoins the lawyer, respondent in
this instance, to keep inviolate confidential information acquired or revealed
during legal consultations. The fact that one is, at the end of the day, not
inclined to handle the clients case is hardly of consequence. Of little
moment, too, is the fact that no formal professional engagement follows the
consultation.Nor will it make any difference that no contract whatsoever was
executed by the parties to memorialize the relationship. As we said in Burbe
v. Magulta,[6] -
A lawyer-client relationship was established
from the very first moment complainant asked
respondent for legal advise regarding the formers
business. To constitute professional employment, it is
not essential that the client employed the attorney
professionally on any previous occasion.
It is not necessary that any retainer be paid,
promised, or charged; neither is it material that the
attorney consulted did not afterward handle the case
for which his service had been sought.
It a person, in respect to business affairs or
troubles of any kind, consults a lawyer with a view to
obtaining professional advice or assistance, and the
attorney voluntarily permits or acquiesces with the
consultation, then the professional employments is
established.
Likewise, a lawyer-client relationship exists
notwithstanding the close personal relationship
between the lawyer and the complainant or the non-
payment of the formers fees.
Dean Wigmore lists the essential factors to establish the existence of the
attorney-client privilege communication, viz:
(1) Where legal advice of any kind is sought (2) from a
professional legal adviser in his capacity as such, (3)
the communications relating to that purpose, (4) made
in confidence (5) by the client, (6) are at his instance
permanently protected (7) from disclosure by himself
or by the legal advisor, (8) except the protection be
waived.[7]
With the view we take of this case, respondent indeed breached his duty of
preserving the confidence of a client. As found by the IBP Investigating
Commissioner, the documents shown and the information revealed in
confidence to the respondent in the course of the legal consultation in
question, were used as bases in the criminal and administrative complaints
lodged against the complainant.
The purpose of the rule of confidentiality is actually to protect the client from
possible breach of confidence as a result of a consultation with a lawyer.
The seriousness of the respondents offense notwithstanding, the Court feels
that there is room for compassion, absent compelling evidence that the
respondent acted with ill-will.Without meaning to condone the error of
respondents ways, what at bottom is before the Court is two former friends
becoming bitter enemies and filing charges and counter-charges against each
other using whatever convenient tools and data were readily available.
Unfortunately, the personal information respondent gathered from her
conversation with complainant became handy in her quest to even the score.
At the end of the day, it appears clear to us that respondent was actuated by
the urge to retaliate without perhaps realizing that, in the process of giving
vent to a negative sentiment, she was violating the rule on confidentiality.
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IN VIEW WHEREOF, respondent Atty. Roceles F. Madianda is
hereby REPRIMANDED and admonished to be circumspect in her handling of
information acquired as a result of a lawyer-client relationship. She is
also STERNLY WARNED against a repetition of the same or similar act
complained of.
G.R. No. 97351 February 4, 1992
RAMON A. GONZALES, petitioner,
vs.
HON. FRANCISCO I. CHAVEZ, in his capacity as Solicitor General,
PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT, and COMMISSION
ON AUDIT, respondents.
ROMERO, J.:
In the instant petition for mandamus and prohibition with prayer for the
issuance of a temporary restraining order, petitioner submits for the Court's
adjudication the twin issues of whether or not the Solicitor General
neglected his public duty by withdrawing as counsel for the Republic of the
Philippines and the Presidential Commission on Good Government (PCGG) in
cases he had filed in court and whether or not the PCGG acted without or in
excess of jurisdiction in hiring private lawyers as a result of such withdrawal
of appearance.
Petitioner Ramon A. Gonzales, as a citizen taxpayer, filed the petition as a
class suit under Section 12, Rule 3 of the Rules of Court on the ground that
the subject matters involved are of common and general interest to all
Filipino citizens and taxpayers as they pertain to the enforcement of a public
duty and the prevention of unlawful expenditure of public funds.
According to the petitioner, the Solicitor General is the counsel for the
Republic and the PCGG in thirty-three (33) cases before this Court, one
hundred nine (109) cases in the Sandiganbayan, one (1) case in the National
Labor Relations Commission and another case in the Municipal Trial Court or
a total of one hundred forty-four (144) cases. 1 In December 1990, the
Solicitor General withdrew as counsel in said cases through a pleading
entitled "Withdrawal of Appearance with Reservation." 2 The pleading states:
The SOLICITOR GENERAL, to this Honorable Court,
hereby respectfully withdraws as counsel for plaintiff
Presidential Commission on Good Government (PCGG)
in the above-captioned case, with the reservation,
however, conformably with Presidential Decree No.
478, the provisions of Executive Order No. 292 as well
as the decisional law of "Orbos v. Civil Service
Commission, et al.," (G.R. No. 92561, September 12,
1990), to submit his comment/observation on
incidents/matters pending with this Honorable Court,
if called for by circumstances in the interest of the
government or if he is so required by the court.
Makati, Metro Manila, December 3, 1990
The Solicitor General filed a substantially similar
pleading in the cases where the Republic is a party.
As a result of such withdrawal of appearance, the PCGG hired forty (40)
private lawyers, nineteen (19) of whom are trial lawyers. They would receive
a monthly compensation of at least P10,000.00 plus appearance fee of
P1,700.00 in actual trial and/or P500.00 if trial is postponed. 3
Petitioner contends that since the Solicitor General's withdrawal of
appearance was made without any reason, it implied that it was "within the
absolute discretion" of said public official. Section 1 of Presidential Decree
No. 478 and Section 35 of the Administrative Code of 1987, however,
mandatorily require the Solicitor General to stand in the place of, and act for
the Republic and the PCGG in court. Therefore, the Solicitor General has "no
discretion to reject by withdrawing" as counsel for said entities.
Applying the ruling of this Court with respect to a fiscal in Sta. Rosa Mining
Co. v. Zabala, 4 the petitioner further states that: "Similarly, it is the duty of
the Solicitor General to appear for the Republic and the PCGG, hence
regardless of his personal convictions or opinions, he must proceed to
discharge his duty (not withdraw, which is equivalent to refusal to
prosecute), and let the court decide the merits of the case." 5
Moreover, petitioner avers that the Solicitor General cannot withdraw his
appearance "with reservation" nor can he file his "comment/observation on
the incident/matters" after such withdrawal because by ceasing to appear as
counsel, he loses his standing in court. Unless a case involves the
constitutionality of a treaty, law, ordinance or executive order for which Rule
3 Section 23 of the Rules of Court 6 mandates his appearance, the Solicitor
General is not authorized to appear therein after his withdrawal as counsel
inasmuch as he himself is not a party-litigant.
Furthermore, under Section 26, of Rule 138, 7 the Solicitor General may not
unilaterally withdraw his appearance without the consent of the Republic or
the PCGG unless the court authorizes his withdrawal. Since there was no
such court authority, the Solicitor General's withdrawal of appearance in said
several cases is null and void, as it constitutes an act against a mandatory law
and hence, it may be attacked collaterally. Neither may the Solicitor General
withdraw on the authority of Orbos v. Civil Service Commission 8 wherein this
Court held:
In the discharge of this task the Solicitor General must
see to it that the best interest of the government is
upheld within the limits set by law. . .
xxx xxx xxx
There are cases where a government agency declines
the services of the Solicitor General or otherwise fails
or refuses to forward the papers of the case to him for
appropriate action. . .
The Court finds and so holds that this practice should
be stopped. To repeat, the Solicitor General is the
lawyer of the government, any of its agents and
officials in any litigation, proceeding, investigation or
matter requiring the services of a lawyer.
The exception is when such officials or agents are being
charged criminally or are being civilly sued for damages
arising from a felony. His services cannot be lightly
rejected, much less ignored by the officer or officials
concerned.
Indeed, the assistance of the Solicitor General should
be welcomed by the parties. He should be given full
support and cooperation by any agency or official
involved in litigation. He should be enabled to faithfully
discharge his duties and responsibilities as the
government advocate. And he should do no less for his
clients. His burden of assisting in the fair and just
administration of justice is clear.
This Court does not expect the Solicitor General
to waver in the performance of his duty. As a matter of
fact, the Court appreciates the participation of the
Solicitor General in many proceedings and his
continued fealty to his assigned task. He should not
therefore desist from appearing before this Court even
in those cases he finds his opinion inconsistent with the
government or any of its agents he is expected to
represent. The Court must be advised of his position
just as well. (Emphasis supplied)
The petitioner adds the following observations: 9
Therefore, this case militates more against the Solicitor
General than in his favor. For if the government and its
officials cannot reject the services of the Solicitor
General, neither may the latter select the case he
would represent by withdrawing in some and retaining
others. For unlike private lawyers who are bound to
5
 their clients by contract and, therefore, can reject
cases offered to them, the Solicitor General and PCGG
are wedded to each other by statute for better and for
worse. And only a divorce, through the abolition of
PCGG or resignation of the Solicitor General, can untie
the marital knot. Otherwise, the relationship should
continue sans PCGG demurring, and the Solicitor
General withdrawing. Absent such resignation or
abolition, the Solicitor General has to prosecute or
defend the said cases to the best of his ability.
Hence, petitioner contends, the PCGG acted without or in excess of
jurisdiction in hiring private lawyers as substitutes for the Solicitor General.
Nowhere in Executive Order Nos. 1, 2 and 14 does it appear that the PCGG is
authorized to hire said lawyers. Since the Solicitor General is named by law
as the lawyer for all government agencies, the hiring of private lawyers by
such agencies is impliedly excluded. Thus, by employing private lawyers, the
PCGG is creating a public office and naming a public officer. However, in the
absence of a law providing for the creation of the office of PCGG counsel,
said hired lawyers are usurpers or intruders whose acts may be challenged in
a collateral proceeding such as an action for prohibition.
Similarly, petitioner asserts, prohibition will lie against the Commission on
Audit considering that any payment for the services of the PCGG-hired
lawyers would result in an unlawful expenditure of public funds. Stressing
the need to preserve the status quo until the determination of his rights as a
citizen and taxpayer, petitioner prays for the issuance of temporary
restraining order.
Acting on the petition, however, the Court required the respondent to file
their respective comments on the petition without granting the prayer for a
temporary restraining order. 10
In its comment, the Commission on Audit (COA) alleges that it has not
allowed the disbursement of funds to pay for the services of PCGG-hired
private lawyers. It points out the fact that under COA Circular No. 89-299
dated March 21, 1989, the COA has withdrawn the pre-audit of transactions
entered into by national government agencies pursuant to the constitutional
provision that the COA has the exclusive authority to "define the scope of its
audit and examination, to establish the techniques and methods required
therefor." 11 Neither has the COA allowed in post-audit the disbursements of
funds in payment of the services of the hired private lawyers. Moreover,
under COA Circular No. 86-255 dated April 2, 1986, the hiring of private
lawyers by government agencies and instrumentalities is prohibited unless
there is prior written conformity of the Solicitor General or the Government
Corporate Counsel, as the case may be, as well as the written concurrence of
COA.
For its part, the PCGG, through Commissioner Maximo A. Maceren and
lawyer Eliseo B. Alampay, asserts in its comment that the scope of its
authority under Executive Orders Nos. 1, 2 and 14 is broad enough to include
the authority to engage the services of private lawyers, if necessary, for the
fulfillment of its mandate. While such authority is not expressly stated in said
executive orders, "it must be deemed necessarily implied in and subsumed
under the expressly enumerated powers of the Commission." 12
The PCGG contends that its power under Section 1 of Executive Order No. 14
to "file and prosecute all cases investigated by it" includes "the grant of
discretion to the Commission in determining the manner of filing and
prosecuting its cases including the matter of who, in particular, will control
and supervise the prosecution of said cases." The phrase "with the assistance
of the Office of the Solicitor General and other government agencies" simply
means that the Solicitor General is called upon to render assistance to the
PCGG and whether or not such discretion is required by the Commission is a
matter of discretion on its part. Such provision does not preclude the PCGG
from engaging the services of private lawyers in the same way that it is
"clearly authorized to hire accountants, appraisers, researchers and other
professionals as it performs its functions." Since, upon the dictates of legal
and practical necessity, it has hired lawyers in the United States and in
Switzerland, "it may similarly hire Filipino lawyers in prosecuting its
Philippine cases." 13
The PCGG further asserts that the hiring of private lawyers is "not an ultra
vires" act but a "means by which (it) can effectively exercise its powers." It
emphasizes the fact that it hired private lawyers "only after the Officer of the
Solicitor General had unilaterally withdrawn its appearance" for the PCGG in
the various pending PCGG-instituted cases. Its own Litigation Division, which
was constituted after the Solicitor General's withdrawal, is "sorely
undermanned" but it has to contend with "affluent and influential individuals
and entities" who can "afford to hire skilled lawyers and organize vast
litigation networks." The PCGG tried to seek the assistance of the
Department of Justice and the Office of the Government Corporate Counsel
but only the former sent two additional prosecutors to handle its cases. 14
The PCGG clarifies that its powers are circumscribed not only by the
executive orders aforementioned but also by the inherent police power of
the State. By hiring private lawyers, it was merely trying to assist the
President of the Philippines in protecting the interest of the State. As such, it
was acting as an alter ego of the President and therefore, it was the
Executive which determined the necessity of engaging the services of private
prosecutors. Contending that "overwhelming necessity" impelled it to hire
private lawyers, the PCGG avers that inasmuch as the Central Bank of the
Philippines or the Philippine National Bank may engage the services of
private lawyers, with more reason may it be allowed to hire private
prosecutors after it was abandoned by the Solicitor General in the
prosecution of the ill-gotten wealth cases. Consequently, "the Solicitor
General's withdrawal of assistance is tantamount to his tacit approval of the
PCGG's hiring of private prosecutors in replacement of the solicitors handling
the said civil cases." 15
The PCGG concludes that the reasonableness of the compensation for its
hired lawyers can hardly be questioned considering the expertise of said
lawyers and the complexity of the cases they would be handling for the
PCGG. Thus, the prayer for a preliminary injunction must be denied
otherwise "the harm that would be done would be far greater than the
perceived mischief petitioner seeks to prevent." 16
Solicitor General Francisco I. Chavez inhibits himself from appearing in this
case "considering that as far as the Office of the Solicitor General (OSG for
brevity) is concerned, the subject is a closed matter among the OSG, the
PCGG and the Courts." 17 In the comment filed by Assistant Solicitor General
Edgardo L. Kilayko and Solicitor Iderlina P. Pagunuran, the OSG sets out at
length the history of the PCGG from its creation until the filing in the
Sandiganbayan of thirty-nine (39) " prima facie cases" for ill-gotten wealth
against former President Marcos and his cronies. As suits and countersuits
stemmed from the original thirty-nine (39) civil cases, "the OSG had been put
to a tremendous task and thus invariably in urgent need of being consulted
or informed by the PCGG of the facts and circumstances material to the
prosecution and progress not only of the original 39 civil cases, but also of all
kinds of "incidents."
Nonetheless, the OSG lawyers faced the challenge and the odds if only to live
up to their task as "the best lawyers there are in the country." The OSG
further explains: 18
On many a time, however a time, however, the lack of
the above-mentioned consultation or information
resulted in situations that rendered the OSG
unavoidably incapable of performing its functions and
duties as Lawyer of the Government, not only as
mandated upon it by law and as spelled out in Orbos
v. CSC, G.R. No. 92561, September 12, 1990, but also in
consonance with its office motto: "Integrity In
Advocacy."
Once the OSG argued before the Sandiganbayan that
an asset was under sequestration, only to be
informed by the adverse party waving a document
before the Sandiganbayan Justices that the
sequestration had earlier been lifted, with a PCGG
resolution, the document, to boot (Razon case). Then,
again, OSG argued, even before this Honorable Court,
that an ill-gotten asset had "mysteriously"
disappeared, only to be informed by the Honorable
Court, that a PCGG Commissioner had earlier by
resolution authorized the disposition of the asset
(COCOFED case). All the instances need not be
enumerated here, as they are not meat and substance,
6
 even as OSG is rendered thereby a laughing stock in its
professionalism.
As to matters that are of great pith and moment,
suffice it to say that the recent Benedicto
"compromise" agreement, not to mention the SMC-
UCPB Compromise settlement, is sub judice or under
advisement not only of the Sandiganbayan but also of
this Honorable Court in separate "incidents," and
suffice it to state that the relationship, obtaining
between the Government offices/agencies and the
Office of the Solicitor General as counsel, is not at all
like one that simply would obtain between private
client and private lawyer in private practice, although
constant consultation and advice are sine qua non in
both types of relationship. The relationship is rather
one, created as it is by law, where imposed upon OSG
is the responsibility to present to the courts the
position that will uphold the best interests of the
People, the Government and the State, albeit the same
may run counter to its client's position or route of
action. At any rate, the PCGG through nationwide TV
broadcast and print media, publicly announced that
PCGG had disposed with or otherwise did not need the
legal services of the Lawyer of the Government, and
thus OSG descended, not the unmerited remark of
having "abandoned" the ill-gotten wealth cases, but
the time-honored principle of impossibilium nulla
obligatio est, i.e., there is no obligation to do
impossible things (Lim Co Chui v. Paredes, 47 Phil.
463), without in any way casting any aspersion on the
moral integrity of any Commissioner or PCGG official,
as made clear by the Solicitor General to the President
in a meeting with PCGG.
Hence, in the light of all the foregoing circumstances,
at rock-bottom precisely so as not to prejudice "the
interest of the Government" (Orbos), the Solicitor
General withdrew as counsel for PCGG in all said cases
by filing a notice of "Withdrawal of Appearance with
Reservation."
In arguing that the instant petition should be dismissed, the OSG contends
that this case has become moot and academic as this very Court had resolved
to allow the withdrawal of appearance of the Solicitor General in all the cases
pending before it "with reservation, conformably with PD No. 478, Executive
Order No. 292, as well as the doctrine laid down in 'Orbos v. Civil Service
Commission, et al.,' G.R. No. 92561, September 12, 1990, . . ." 19 For its part,
the Sandiganbayan had also resolved that "the appearance of the Solicitor
General is deemed withdrawn to be substituted by the PCGG's legal panel." 20
The OSG maintains further that the instant petition does not present a case
and controversy as the petitioner himself does not even have a "court
standing" and a "litigable interest." All the petitioner seeks is an "advisory
opinion." The OSG asserts that the "incident" (referring to the Solicitor
General's withdrawal of appearance) should be distinguished from that in JPC
Enterprise, Inc. v. Court of Appeals, et al., 21 wherein the Assets Privatization
Trust (APT) decided to appear for itself because the law names the Minister
of Justice only as its ex oficiolegal adviser while by itself it can file suits and
institute proceedings and engage external expertise in the fulfillment of its
tasks. However, since the APT has no personality of its own, it should have
appeared through the Solicitor General. The OSG argues that said
"adversarial incident" is not present in this case.
In his reply to the comments of the PCGG and the OSG, the petitioner insists
that although as between the Solicitor General and the PCGG, this case may
have been rendered moot and academic, as between him on the one hand
and the Solicitor General and the PCGG on the other hand, a "real
controversy" still exists and the issues raised herein have not ceased to exist
either. Moreover, a judgment of prohibition and mandamus would have a
"practical legal effect and can be enforced." 22
Citing Miguel v. Zulueta, 23 and Taada v. Tuvera, 24 petitioner asserts that he
has a standing in court because where a question of public right is involved
and the object of the mandamus is the enforcement of a public duty, the
relator need not show any legal or special interest in the result of the
proceeding. It is sufficient that, as a citizen, he is interested in having the
laws executed and the duty in question enforced.
The petitioner rebuts the PCGG's contention that its power to hire private
lawyers may be implied from its expressly enumerated powers. He asserts
that since P.D. No. 478 mandates that "the Solicitor General as law office of
the government with the duty to appear for the PCGG," no implication from
the express powers of (the) PCGG can stand against the language of P.D. No.
478. On the other hand, the law regarding the PCGG and that regarding the
Solicitor General should be harmonized. 25
The Court considers these pleadings sufficient bases for resolving this
petition and, on account of the importance and imperativeness of the issues
raised herein, the filing of memoranda by the parties is dispensed with.
We shall, first of all, confront a preliminary issue interposed by the OSG
whether or not this case has been rendered moot and academic by this
Court's resolution granting the Solicitor General's motion to withdraw
appearance as counsel in the several cases pending herein. It should be
clarified that the resolution had to be issued with the national interest in
mind. Time was of the essence and any hedging on the part of the PCGG
and/or its counsel could, not merely set back but prejudice, the
government's all-out efforts to recover ill-gotten wealth.
Notwithstanding the ostensible mootness of the issues raised in a case, this
Court has never shirked from its symbolic function of educating bench and
bar by formulating guiding and controlling principles, precepts, doctrines and
rules. 26 More so, if the case is of such magnitude that certain legal
ambiguities must be unravelled for the protection of the national interest. 27
To allow the transcendental issue of whether the OSG may withdraw its
appearance in a cluster of cases of national import to pass into legal limbo
simply because it has been "mooted" would be a clear case of misguided
judicial self-restraint. This Court has assiduously taken every opportunity to
lay down brick by brick the doctrinal infrastructure of our legal system.
Certainly, this is no time for a display of judicial timorousness of the kind
which the Solicitor General is untimely exhibiting now.
Accordingly, we confront the issue conscious of their far-reaching
implications, not alone on the instant case but on future ones as well, which
the OSG will surely be called upon to handle again and again.
The resolution of the first issue laid down at the beginning of
this ponencia hinges on whether or not the Solicitor General may be
compelled by mandamus to appear for the Republic and the PCGG. This issue
is best resolved by a close scrutiny of the nature and extent of the power and
authority lodged by law on the Solicitor General.
At this juncture, a flashback on the statutory origins of the Office of the
Solicitor General is in order. Incorporated in Act No. 136 dated June 11,
1901 28 providing for the organization of courts in the Philippine Islands was
Chapter III entitled "The Attorney General." Section 40 states:
There shall be an Attorney-General for the Philippine
Islands, to be appointed by the Philippine Commission .
..
The catalog of his duties includes the following:
He shall prosecute or defend therein all causes, civil
and criminal, to which the Government of the
Philippine Islands, or any officer thereof, in his official
capacity, is a party . . . 29
Section 41 further provides:
There shall be an officer learned in the law to assist the
Attorney-General in the performance of all his duties,
called the Solicitor-General who shall be appointed by
the Commission . . . In case of a vacancy in the office of
7
 Attorney-General, or of his absence or disability, the P.D. 478 became, as it were, the Magna Carta of the Office of the Solicitor
Solicitor-General shall have power to exercise the General. After the change of administration, or on July 25, 1987, President
duties of that office. Under the supervision of the Corazon C. Aquino signed into law Executive Order No. 292 instituting the
Attorney-General, it shall be the especial duty of the Administrative Code of 1987. Under Book IV, Title III, Chapter 12 thereof, the
Solicitor-General to conduct and argue suits and Office of the Solicitor General is described as an "independent and
appeals in the Supreme Court, in which the Philippine autonomous office attached to the Department of Justice." Headed by the
Government is interested, and the Attorney-General Solicitor General, "who is the principal law officer and legal defender of the
may, whenever he deems it for the interest of the Government," the Office shall have a Legal Staff composed of fifteen (15)
Philippine Government, either in person conduct and Assistant Solicitors General and such number of Solicitors and Trial Attorneys
argue any case in any court of the Philippine Islands in "as may be necessary to operate the Office which shall divided into fifteen
which the Philippine Government is interested or may (15) divisions. 43 Among its powers and functions are the following which are
direct the Solicitor General to do so. (Emphasis relevant to the issues:
supplied)
Sec. 35. Powers and Functions. The office of the
Six months later, a law was passed reorganizing the Office of the Attorney- Solicitor General shall represent the Government of the
General and providing for the appointment of the said official and the Philippines, its agencies and instrumentalities and its
Solicitor General by the Civil Governor and for an increase in their salaries. officials and agents in any litigation, proceeding,
Their duties remained basically the same. 30 investigation or matter requiring the services of a
lawyer. When authorized by the President or head of
In the meantime, Act No. 222 was passed on September 5, 1901 providing for the office concerned, it shall also represent
the organization of, among others, the Department of Finance and Justice government owned or controlled corporations. The
which embraced within its executive control the Bureau of Justice. 31 Office of the Solicitor General shall constitute the law
office of the Government, and, as such, shall discharge
duties requiring the services of a lawyer. (Emphasis
Under Act No. 2711, otherwise known as the Administrative Code of 1917,
supplied.) It shall have the following specific powers
the Bureau of Justice is specifically constituted "the law office of the
and functions:
Government of the Philippine Islands and by it shall be performed duties
requiring the services of a law officer." 32 Its chief officials are the Attorney-
General and his assistant, the Solicitor General. 33 (1) Represent the Government in
the Supreme Court and the
Court of Appeals in all criminal
As principal law officer of the Government, the
proceedings; represent the
Attorney-General shall have authority to act for and
Government and its officers in
represent the Government of the Philippine Islands, its
the Supreme Court, the Court of
officers, and agents in any official investigation,
Appeals, and all other courts or
proceeding, or matter requiring the services of a
tribunals in all civil actions and
lawyer. 34
special proceedings in which the
Government or any officer
In 1932, the office of the Attorney-General was phased out and his functions thereof in his official capacity is a
were assumed by the Secretary of Justice. 35 Subsequently, the Bureau of party.
Justice came to be known as the Office of the Solicitor General, 36 headed by
the Solicitor General. 37
(2) Investigate, initiate court
action, or in any manner
Parenthetically, these institutions were patterned after the Office of proceed against any person,
Attorney-General, created by the First U.S. Congress in the Judiciary Act of corporation or firm for the
1789 which called for a "meet person, learned in the law, to act as Attorney- enforcement of any contract,
General for the U.S." 38 When the Department of Justice was established in bond, guarantee, mortgage,
1870, the position of Solicitor-General was created as an assistant to the pledge or other collateral
Attorney-General. 39 Over a century later, their respective positions and executed in favor of the
functions remain the same. The Attorney-General of the United States, Government. Where
appointed by the President with the advice and consent of the Senate, is now proceedings are to be conducted
the head of the Department of Justice. 40 In the same manner, a Solicitor outside of the Philippines, the
General, learned in the law, is appointed to assist the Attorney-General in Solicitor General may employ
the performance of his duties. 41 counsel to assist in the discharge
of the aforementioned
In contrast, the Solicitor-General of the Philippines, emerging from the responsibilities.
shadow of the Attorney-General and later, of the Secretary of Justice, has
come to his own. On July 20, 1948, Republic Act. No. 335, amending Section xxx xxx xxx
1659 of the Administrative Code, bestowed on him the rank of
Undersecretary of a Department. Subsequently, a series of amendatory laws
(8) Deputize legal officers of
designed to enlarge the complement of the Office of the Solicitor General
government departments,
was enacted42 until on June 4, 1974, by virtue of Presidential Decree No. 478,
bureaus, agencies and offices to
its pivotal role in the government became clearly defined and delineated.
assist the Solicitor General and
appear or represent the
During the martial law years, President Ferdinand E. Marcos leaned heavily Government in cases involving
on his Solicitor General to provide legal underpinnings of his official acts. their respective offices, brought
Reflective of the tremendously enhanced power of the official and the before the courts and exercise
position was Executive Order No. 454 enacted on September 23, 1975, supervision and control over
conferring upon the Solicitor General the rank of a member of the such legal Officers with respect
Cabinet "with all the rights, honors and privileges pertaining to the position." to such cases.
Said executive order was superseded by Executive Order No. 473 dated
August 12, 1976 "making the Solicitor General a member of the
(9) Call on any department,
Cabinet." These executive orders were capped by Executive Order No. 552
bureau, office, agency or
dated August 14, 1979 elevating the OSG into a Ministry with the same
instrumentality of the
powers and functions defined in P.D. Nos. 478 and 1347.
Government for such service,

8
 assistance and cooperation as
may be necessary in fulfilling its
function and responsibilities and
for this purpose enlist the
services of any government
official or employees in the
pursuit of his tasks.
Departments, bureaus, agencies,
offices, instrumentalities and
corporations to whom the Office
of the Solicitor General renders
legal services are authorized to
disburse funds from their sundry
operating and other funds for
the latter Office. For this
purpose, the Solicitor General
and his staff are specifically
authorized to receive allowances
as may be provided by the
Government offices,
instrumentalities and
corporations concerned, in
addition to their regular
compensation.
(10) Represent, upon the
instructions of the President of
the Republic of the Philippines in
international litigations,
negotiations or conferences
where the legal position of the
Republic must be defended or
presented.
(11) Act for the Republic and/or
the people before any court,
tribunal, body or commission in
any matter, action or proceeding
which, in his opinion , affects the
welfare of the people as the
ends of justice may require; and
(12) Perform such other
functions as may be provided by
law. 44
In thus tracing the origins of the Office of the Solicitor General to gain a clear
understanding of the nature of the functions and extent of the powers of the
Solicitor General himself, it is evident that a policy decision was made in the
early beginnings to consolidate in one official the discharge of legal functions
and services in the government. These took the form mostly of representing
the Government in various legal proceedings.
The rationale behind this step is not difficult to comprehend. Sound
government operations require consistency in legal policies and practices
among the instrumentalities of the State. Moreover, an official learned in the
law and skilled in advocacy could best plan and coordinate the strategies and
moves of the legal battles of the different arms of the government. Surely,
the economy factor, too, must have weighed heavily in arriving at such a
decision.
It is patent that the intent of the lawmaker was to give the designated
official, the Solicitor General, in this case, the unequivocal mandate to
appear for the government in legal proceedings. Spread out in the laws
creating the office is the discernible intent which may be gathered from the
term "shall," which is invariably employed, from Act No. 136 (1901) to the
more recent Executive Order No. 292 (1987).
Under the principles of statutory construction, so familiar even to law
students, the term "shall" is nothing if not mandatory.
In common or ordinary parlance and in its ordinary
significance, the term "shall" is a word of command,
and one which has always and which must be given a
compulsory meaning, and it is generally imperative or
mandatory. It has the invariable significance of
operating to impose a duty which may be enforced,
particularly if public policy is in favor of this meaning or
when public interest is involved, or where the public or
persons have rights which ought to be exercised or
enforced, unless a contrary intent appears. 45
The presumption is that the word "shall" in a statute is
used in an imperative, and not in a directory, sense. If
a different interpretations if sought, it must rest upon
something in the character of the legislation or in the
context which will justify a different meaning. 46
Exactly what is the signification of the mandate for the OSG "to represent the
Government of the Philippines, its agencies and instrumentalities and its
officials and agents in any litigation, proceeding, investigations or matter
requiring the services of the lawyer?"
To "represent" is standing in place, supplying the place,
or performing the duties or exercising the rights, of the
party represented; to speak or act with authority on
behalf of another; to conduct and control proceedings
in court on behalf of another. 47
The decision of this Court as early as 1910 with respect to the duties of
Attorney-General well applies to the Solicitor General under the facts of the
present case. The Court then declared:
In this jurisdiction, it is the duty of the Attorney
General "to perform the duties imposed upon him by
law" and "he shall prosecute all causes, civil and
criminal, to which the Government of the Philippines
Islands, or any officer thereof, in his official capacity, is
a party . . ." 48
Being a public officer, the Solicitor General is "invested with some portion of
the sovereign functions of the government, to be exercised by him for the
benefit of the public." 49 Another role of the Solicitor General is an officer of
the Court, in which case he is called upon "to share in the task and
responsibility of dispensing justice and resolving disputes;" therefore, he may
be enjoined in the same manner that a special prosecutor was sought
enjoined by this Court from committing any act which may tend to "obstruct,
pervert or impede and degrade the administration of justice." 50
In one case where a fiscal manifested before the trial court that he would not
prosecute the case in court for insufficiency of evidence after his motion to
dismiss had been denied, this Court granted a petition for mandamusto
compel him to prosecute the case. We declared:
Notwithstanding his personal convictions or opinions,
the fiscal must proceed with his duty of presenting
evidence to the Court to enable the court to arrive at
its own independent judgment as to the culpability of
the accused. The fiscal should not shirk from his
responsibility much less leave the prosecution of the
case at the hands of a private prosecutor . . . In the trial
of criminal cases, it is the duty of the public prosecutor
to appear for the government since an offense is an
outrage to the sovereignty of the State . . . This is so
because "the prosecuting officer is the representative
not of an ordinary party to a controversy but of a
sovereignty where obligation to govern impartially is as
compelling as its obligations to govern at all; and
whose interest, therefore, in criminal prosecution is
not that it shall win a case, but that justice shall be
done. As such, he is in a peculiar and very definite
sense the servant of the law, the two-fold aim of which
is that guilt shall not escape or innocence suffer. 51
9
Undoubtedly, the above arguments apply equally well to the Solicitor
General who is sought to be compelled to appear before the different courts
to ensure that the case of the Republic of the Philippines against those who
illegally amassed wealth at the expense the people maybe made to account
for their misdeeds and return said wealth.
Like the Attorney-General of the United States who has absolute discretion in
choosing whether to prosecute or not to prosecute or to abandon a
prosecution already started, 52 our own Solicitor General may even dismiss,
abandon, discontinue or compromise suit either with or without stipulations
with other party. 53 Abandonment of a case, however, does not mean that
the Solicitor General may just drop it without any legal and valid reason for
the discretion given him is not unlimited. 54 Its exercise must be, not only
within the parameters set by law but with the best interest of the State as
the ultimate goal. Such are reflected in its policies, thus:
The discretionary power of the attorney for the United
States in determining whether a prosecution shall be
commenced or maintained may well depend upon
matters of policy wholly apart from any question of
probable cause. Although as member of the bar, the
Attorney for the United States is an officer of the
court, he is nevertheless an executive official of the
Government, and it is as an officer of the executive
department that he exercises a discretion as to
whether or not there shall be a prosecution in a
particular case. . . . 55
The first executive order ever issued by President Aquino on February 28,
1986, created the PCGG. It announced the government's policy of recovering
all ill-gotten wealth amassed by former President Marcos, his immediate
family, relatives and close associates. It charged the PCGG with the "task of
assisting the President" in regard to the recovery of all ill-gotten wealth,
investigation of "such cases of graft and corruption as the President may
assign" to it, and the adoption of safeguards to ensure that corruption may
not be again committed with impunity.
This issuance was followed by Executive Order No. 2 dated March 12, 1986
freezing all assets and properties of Marcos, his family and cronies;
prohibiting their transfer, conveyance, encumbrance or concealment, and
requiring all persons in and outside of the Philippines who are in possession
of said properties to make full disclosure of the same to the PCGG.
On April 11, 1986, the PCGG promulgated its Rules and Regulations. A
pertinent provision states:
Sec. 10. Findings of the Commission. Based on the
evidence adduced, the Commission shall determine
whether there is reasonable ground to believe that the
asset, property or business enterprise in question
constitute ill-gotten wealth as described in Executive
Orders Nos. 1 and 2. In the event of an affirmative
finding, the Commission shall certify the case to the
Solicitor General for appropriate action in accordance
with law. Business, properties, funds, and other assets
found to be lawfully acquired shall be immediately
released and the writ of sequestration, hold or freeze
orders lifted accordingly. (Emphasis supplied)
Thereafter, or on May 7, 1986, Executive Order No. 14 defining the
jurisdiction over cases involving such ill-gotten wealth was issued, it contains
the following provisions:
Sec. 1. Any provision of law to the contrary
notwithstanding, the Presidential Commission on Good
Government, with the assistance of the Solicitor
General and other government agencies, is hereby
empowered to file and prosecute all cases investigated
by it under Executive Order No. 1, dated February 28,
1986, and Executive Order No. 2, dated March 12,
1986, as may be warranted by its finding.
Sec. 2. The Presidential Commission on Good
Government shall file all such cases, whether civil or
criminal, with the Sandiganbayan, which shall have
exclusive and original jurisdiction thereof.
Sec. 3. Civil suits for restitution, reparation of damages,
or indemnification for consequential damages,
forfeiture proceedings provided for under Republic Act
No. 1379, or any other civil actions under the Civil
Code or other existing laws, in connection with
Executive Order No. 2 dated March 12, 1986, may be
filed separately from and proceed independently of
any criminal proceedings and may be proved by a
preponderance of evidence. (Emphasis supplied).
All these legal provisions ineluctably lead to no other conclusion but that
under the law of its creation and the complementary Rules, the law office of
the PCGG, as it is for the rest of the Government, is the Office of the Solicitor
General. Although the PCGG is "empowered to file and prosecute all cases
investigated by it" under Executive Orders No. 1 and 2, it does not thereby
oust the Office of the Solicitor General from its lawful mandate to represent
the Government and its agencies in any litigation, proceeding, investigation
or matter requiring the services of a lawyer. Moreover, such express grant of
power to PCGG does not imply that it may abdicate such power and turn
over the prosecution of the cases to private lawyers whom it may decide to
employ. In those instances where proceedings are to be conducted outside
of the Philippines, the Solicitor General, continuing to discharge his duties,
may employ counsel to assist him, 56 particularly because he may not be
licensed to appear before the courts in a foreign jurisdiction.
Under its own Rules and Regulations, specifically the provision aforequoted,
the PCGG certifies to the Solicitor General the cases for which it had found
reasonable ground to believe that certain assets and properties are ill-gotten
under Executive Order Nos. 1 and 2. The Solicitor General shall then proceed
"in accordance with law."
Upon receipt of a case certified to him, the Solicitor General exercises his
discretion in the management of the case. He may start the prosecution of
the case by filing the appropriate action in court or he may opt not to file the
case at all. He may do everything within his legal authority but always
conformably with the national interest and the policy of the government on
the matter at hand.
After filing a case, he may even move for its dismissal in the event that, along
the way, he realizes that prosecuting the case would not serve the
government's purposes. In other words, because he was appointed to the
position on account of his qualification as a man "learned in the law," the
Solicitor General is obligated to perform his functions and to perform them
well. He may not, however, abdicate his function through an arbitrary
exercise of his discretion. We find that a withdrawal of appearance on flimsy
or petty grounds is tantamount to withdrawing on no grounds at all and to a
dereliction of duty.
The Office of the Solicitor General repeatedly invoked the ruling in Orbos
v. Civil Service Commission, 57 which hardly constitutes authority to uphold its
position with respect to the withdrawal of the Solicitor General in the instant
case. On the contrary, in said case, this Court struck down private
respondent's motion to disqualify the OSG from appearing for petitioner
Department of Transportation and Communications Secretary Orbos. At the
risk of being repetitious, the parties were reminded that under Section 1 of
Presidential Decree No. 478
The Office of the Solicitor General shall represent the
Government of the Philippines, its agencies and
instrumentalities and its officials and agents in any
litigation, proceeding, investigation, or matter
requiring the services of a lawyer. (Emphasis supplied)
This Court clarified that even when "confronted with a situation where one
government office takes an adverse position against another government
agency, as in this case, the Solicitor General should not refrain from
performing his duty as the lawyer of the government. It is incumbent upon
him to present to the court what he considers would legally uphold the best
10
interest of the government although it may run counter to a client's position.
In such an instance, the government office adversely affected by the position
taken by the Solicitor General, if it still believes in the merit of its case may
appear in its own behalf through its legal personnel or representative."
The Court further pointed out that it is not entirely impossible that the Office
of the Solicitor General may take a position adverse to his clients like the Civil
Service Commission and the National Labor Relations Commission, among
others, and even the People of the Philippines. In such instances, however, it
is not proper for the Solicitor General to simply decline to handle the case or
arbitrarily withdraw therefrom. The Court enjoins him to "nevertheless
manifest his opinion and recommendations to the Court which is an
invaluable aid in the disposition of the case." 58
However, in those cases where a government agency declines the services of
the Solicitor General or otherwise fails or refuses to forward the papers of
the case to him for appropriate action, the Court categorically held that ". . .
this practice should be estopped." 59 By the same token, the Solicitor General
should not decline to appear in court to represent a government agency
without just and valid reason, especially the PCGG which is under the Office
of the President, he being a part of the Executive Department.
In the case at bar, the reason advanced by the Solicitor General for his
motion to withdraw his appearance as lawyer for the PCGG is that he has
been, more than once embarrassed in court and thereby made "a laughing
stock in its (his) professionalism." Examples are when the OSG lawyers
betrayed ignorance in open court of certain moves taken by the PCGG, such
as the lifting of a sequestration of an asset or when it was under the
impression that an asset had mysteriously disappeared only to be informed
that "a PCGG Commissioner had earlier by resolution authorized the
disposition of said asset."
The last straw, as it were, was the public announcement through media
made by the PCGG that it had "dispensed with or otherwise did not need the
legal services of the lawyer of the government." 60 It is evident that the
withdrawal of the Solicitor General was precipitated by institutional pique,
the lawyers concerned having allowed their collective pride to prevail over
their sense of duty in protecting and upholding the public interest.
One wistfully wishes that the OSG could have been as zealous in representing
the PCGG as it was in appearing for the head of their office, the Solicitor
General, in a civil suit for damages filed against him in a Regional Trial Court
arising from allegedly defamatory remarks uttered by him.
Such enthusiasm, according to this Court, was misplaced. For Section 1 of
Presidential Decree No. 478 which authorizes the OSG to represent the
Government of the Philippines, its agencies and instrumentalities and its
officials and agents in any litigation, admits of an exception, and that it is, it
stops short of representing "a public official at any stage of a criminal case or
in a civil suit for damages arising from a felony." 61
In instances such as the above, the OSG can, with reason, withdraw its
representation even if it has already entered its appearance. But the Solicitor
General, as the officially-mandated lawyer of the government, is not
empowered to take a similar step on the basis of a petty reason like
embarrassment, as that to which the individual lawyers assigned to appear
for their office were subjected. Had they not been too preoccupied with their
personal feelings, they could have checked themselves in time. For a sense of
professional responsibility and proper decorum would dictate that they
distinguish between the institution which, from the very beginning, had been
constituted as the law office of the Government and the individuals through
whom its powers and duties are exercised. No emotions, of whatever kind
and degree, should be allowed to becloud their high sense of duty and
commitment to country and people.
The OSG itself admitted refraining from citing other incidents as additional
bases for the Solicitor General's withdrawal "as they are not of meat and
substance" but apparently, their overwhelming sense of shame overcame
them as the OSG was "rendered thereby a laughing stock in its
professionalism." 62
Now a word on the incidents that allegedly caused humiliation to the OSG
lawyers, thus provoking the Solicitor General into withdrawing his
appearance as counsel for the PCGG. No litigation can be assured of success
if counsel does not enjoy the confidence of his client. This is manifested by,
among other things, holding regular, constant and untrammeled consultation
with each other. Who can say but that if the communication lines had been
kept open between the OSG and PCGG, no surprises would have been sprung
on the former by the latter in open court?
Petitioner's claim that the Solicitor General could not withdraw his
appearance as lawyer of PCGG inasmuch as he had neither the consent of his
client nor the authority from the court, applying the pertinent provision of
the Rules of Court, is not well-taken. Here is no ordinary lawyer-client
relationship. Let it be remembered that the client is no less than the Republic
of the Philippines in whom the plenum of sovereignty resides. Whether
regarded as an abstract entity or an ideal person, it is to state the obvious
that it can only act through the instrumentality of the government which,
according to the Administrative Code of 1987, refers to the "corporate
governmental entity through which the functions of government are
exercised throughout the Philippines . . ." 63And the OSG is, by law,
constituted the law office of the Government whose specific powers and
functions include that of representing the Republic and/or the people before
any court in any action which affects the welfare of the people as the ends of
justice may require.
Indeed, in the final analysis, it is the Filipino people as a collectivity that
constitutes the Republic of the Philippines. Thus, the distinguished client of
the OSG is the people themselves of which the individual lawyers in said
office are a part.
In order to cushion the impact of his untimely withdrawal of appearance
which might adversely affect the case, the Solicitor General has offered "to
submit his comment/observation on incidents/matters pending with this
Honorable Court, if called for by circumstances in the interest of the
government or if he is so required by the court." However, as correctly
pointed out by the petitioner, while the Solicitor General may be free to
express his views and comments before the Court in connection with a case
he is handling, he may not do so anymore after he has formally expressed his
refusal to appear therein. For by then, he has lost his standing in court.
Unless his views are sought by the court, the Solicitor General may not
voluntarily appear in behalf of his client after his withdrawal from the case;
otherwise, such reappearance would constitute a blatant disregard for court
rules and procedure, and that, on the part of one who is presumed to be
"learned in the law."
In the face of such express refusal on the part of the Solicitor General to
continue his appearance as counsel of the PCGG in the cases to recover the
ill-gotten wealth of the Filipino people from the Marcoses and their cronies,
the PCGG has had to employ the service of a group of private attorneys lest
the national interest be prejudiced. Were this Court to allow such action to
remain unchallenged, this could well signal the laying down of the novel and
unprecedented doctrine that the representation by the Solicitor General of
the Government enunciated by law is, after all, not mandatory but merely
directory. Worse, that this option may be exercised on less than meritorious
grounds; not on substance but on whimsy, depending on the all too human
frailties of the lawyers in the OSG assigned to a particular case. Under such
circumstances, it were better to repeal the law than leave the various
government agencies, all dependent on the OSG for legal representation, in a
condition of suspenseful uncertainty. With every looming legal battle, they
will be speculating whether they can rely on the Solicitor General to defend
the Government's interest or whether they shall have to depend on their
own "in-house" resources for legal assistance.
The Court is firmly convinced that, considering the spirit and the letter of the
law, there can be no other logical interpretation of Sec. 35 of the
Administrative Code than that it is, indeed, mandatory upon the OSG to
"represent the Government of the Philippines, its agencies and
instrumentalities and its officials and agents in any litigation, proceeding,
investigation or matter requiring the services of a lawyer."
Sound management policies require that the government's approach to legal
problems and policies formulated on legal issues be harmonized and
coordinated by a specific agency. The government owes it to its officials and
their respective offices, the political units at different levels, the public and
the various sectors, local and international, that have dealings with it, to
11
assure them of a degree of certitude and predictability in matters of legal
import.
From the historical and statutory perspectives detailed earlier in
this ponencia, it is beyond cavil that it is the Solicitor General who has been
conferred the singular honor and privilege of being the "principal law officer
and legal defender of the Government." One would be hard put to name a
single legal group or law firm that can match the expertise, experience,
resources, staff and prestige of the OSG which were painstakingly built up for
almost a century.
Moreover, endowed with a broad perspective that spans the legal interests
of virtually the entire government officialdom, the OSG may be expected to
transcend the parochial concerns of a particular client agency and instead,
promote and protect the public weal. Given such objectivity, it can discern,
metaphorically speaking, the panoply that is the forest and not just the
individual trees. Not merely will it strive for a legal victory circumscribed by
the narrow interests of the client office or official, but as well, the vast
concerns of the sovereign which it is committed to serve.
In light of the foregoing, the Solicitor General's withdrawal of his appearance
on behalf of the PCGG was beyond the scope of his authority in the
management of a case. As a public official, it is his sworn duty to provide
legal services to the Government, particularly to represent it in litigations.
And such duty may be enjoined upon him by the writ of mandamus. And
such duty may be enjoined upon him by the writ of mandamus. Such order,
however, should not be construed to mean that his discretion in the handling
of his cases may be interfered with. The Court is not compelling him to act in
a particular way. 64 Rather, the Court is directing him to prevent a failure of
justice 65resulting from his abandonment in midstream of the cause of the
PCGG and the Republic and ultimately, of the Filipino people.
In view of the foregoing, there need be no proof adduced that the petitioner
has a personal interest in the case, as his petition is anchored on the right of
the people, through the PCGG and the Republic, to be represented in court
by the public officer duly authorized by law. The requirement of personal
interest is satisfied by the mere fact that the petitioner is a citizen and hence,
part of the public which possesses the right. 66
The writ of prohibition, however, may not be similarly treated and granted in
this petition. The said writ, being intended to prevent the doing of some act
that is about to be done, it may not provide a remedy for acts which are
already fait accompli. 67 Having been placed in a situation where it was
constrained to hire private lawyers if the Republic's campaign to legally
recover the wealth amassed by the Marcoses, their friends and relatives was
to prosper, the PCGG's action is justified. However, it was not entirely
blameless. Its failure to coordinate closely with the Solicitor General has
spawned the incidents which culminated in the withdrawal of the latter from
appearing as counsel in its cases.
WHEREFORE, the petition for a writ of mandamus is hereby GRANTED. The
Solicitor General is DIRECTED to immediately re-enter his appearance in the
cases wherein he had filed a motion to withdraw appearance and the PCGG
shall terminate the services of the lawyers it had employed but not before
paying them the reasonable fees due them in accordance with rules and
regulations of the Commission on Audit.
This decision is immediately executory.
SO ORDERED.
A.C. No. 10558 February 23, 2015
MICHAEL RUBY, Complainant,
vs.
ATTY. ERLINDA B. ESPEJO and ATTY. RUDOLPH DILLA BAYOT, Respondents.
D E C I S I O NREYES, J.:
This is an administrative complaint1
filed by Michael Ruby (complainant) with
the Commission on Bar Discipline (CBD) of the Integrated Bar of the
Philippines (IBP) against Atty. Erlinda B. Espejo (Atty. Espejo) and Atty.
Rudolph Dilla Bayot (Atty. Bayot) (respondents) for violation of the Code of
Professional Responsibility.
The Facts
The complainant alleged that he and his mother, Felicitas Ruby Bihla
(Felicitas), engaged the services of the respondents in connection with a case
for cancellation and nullification of deeds of donation. Pursuant to the
retainer agreement2 dated August 29, 2009, the complainant and Felicitas
would pay Atty. Espejo the amount ofP100,000.00 as acceptance
fee, P70,000.00 of which was actually paid upon the signing of the
agreement and the remaining P30,000.00 to be paid after the hearing on the
prayer for the issuance of a temporary restraining order (TRO). The
complainant and Felicitas likewise agreed to pay the amount of P5,000.00 as
appearance fee for every hearing, which was apparently later reduced
to P4,000.00.
On September 15, 2009, the complainant gave Atty. Espejo the amount
of P50,000.00 as payment for filing fee.3On September 16, 2009, Atty. Espejo
filed the complaint for nullification and cancellation of deeds of donation
with the Regional Trial Court (RTC) of Quezon City, Branch 219. However, the
actual filing fee that was paid by her only amounted to 7,561.00;4 she failed
to account for the excess amount given her despite several demand
letters5 therefor.
On September 23, 2009, Atty. Espejo allegedly asked the complainant to give
Atty. Bayot the amount ofP30,000.00 the remaining balance of the
acceptance fee agreed upon notwithstanding that the prayer for the
issuance of a TRO has yet to be heard. The complainant asserted that the
same was not yet due, but Atty. Espejo told him that Atty. Bayot was in dire
need of money. The complainant gave Atty. Bayot the amount of P8,000.00
supposedly as partial payment for the balance of the acceptance fee and an
additional P4,000.00 as appearance fee for the September 22, 2009 hearing.6
On September 25, 2009, Atty. Espejo called the complainant informing him of
the need to file a separate petition for the issuance of a TRO. She allegedly
asked for P50,000.00 to be used as "representation fee." The complainant
was able to bargain with Atty. Espejo and gave her P20,000.00 instead.7
Meanwhile, on September 24, 2009, the RTC issued an Order8 denying the
complainants prayer for the issuance of a TRO. The complainant alleged that
the respondents failed to apprise him of the denial of his prayer for the
issuance of a TRO; that he only came to know of said denial on November 3,
2009 when he visited the RTC.9
On October 23, 2009, the complainant deposited the amount of P4,000.00 to
the bank account of Atty. Bayot as appearance fee for the hearing on the
motion to serve summons through publications, which was set at 2:00 p.m.
on even date. However, Atty. Bayot allegedly did not appear in court and
instead met with the complainant at the lobby of the Quezon City Hall of
Justice, telling them that he already talked to the clerk of court who assured
him that the court would grant their motion.10
Thereafter, the complainant alleged, the respondents failed to update him as
to the status of his complaint. He further claimed that Atty. Bayot had
suddenly denied that he was their counsel. Atty. Bayot asserted that it was
Atty. Espejo alone who was the counsel of the complainant and that he was
merely a collaborating counsel.
In its Order11 dated January 7, 2010, the IBP-CBD directed the respondents to
submit their respective answers to the complaint.
In his Answer,12 Atty. Bayot claimed that he was not the counsel of the
complainant; that he merely assisted him and Atty. Espejo. He averred that
Atty. Espejo, with the complainants consent, sought his help for the sole
purpose of drafting a complaint. He pointed out that it was Atty. Espejo who
signed and filed the complaint in the RTC.13
Atty. Bayot further pointed out that he had no part in the retainer agreement
that was entered into by the complainant, Felicitas, and Atty. Espejo. He also
denied having any knowledge as to the P50,000.00 that was paid to Atty.
Espejo as filing fees.14
12
As to the P12,000.00 that was given him, he claimed that he was entitled
to P4,000.00 thereof since the said amount was his appearance fee. He
pointed out that he appeared before the RTCs hearing for the issuance of a
TRO on September 22, 2009. On the other hand, the P8,000.00 was paid to
him as part of the acceptance fee, which was then already due since the RTC
had already heard their prayer for the issuance of a TRO.15
He also denied any knowledge as to the P20,000.00 that was paid to Atty.
Espejo purportedly for "representation fee" that would be used to file a new
petition for the issuance of a TRO.16
Atty. Bayot admitted that he was the one who drafted the motion to serve
summons through publication, but pointed out that it was Atty. Espejo who
signed and filed it in the RTC. He also admitted that he was the one who was
supposed to attend the hearing of the said motion, but claimed that he was
only requested to do so by Atty. Espejo since the latter had another
commitment. He denied requesting from the complainant the amount
ofP4,000.00 as appearance fee, alleging that it was the latter who insisted on
depositing the same in his bank account.17
During the said hearing, Atty. Bayot claimed that when he checked the
courts calendar, he noticed that their motion was not included. Allegedly,
the clerk of court told him that she would just tell the judge to consider their
motion submitted for resolution.18
On the other hand, Atty. Espejo, in her Answer,19 denied asking
for P50,000.00 from the complainant as filing fees. She insisted that it was
the complainant who voluntarily gave her the money to cover the filing fees.
She further alleged that she was not able to account for the excess amount
because her files were destroyed when her office was flooded due to a
typhoon. She also denied having asked another P50,000.00 from the
complainant as "representation fee," asserting that the said amount was for
the payment of the injunction bond once the prayer for the issuance of a
TRO is issued.
Findings of the Investigating Commissioner
On May 3, 2011, after due proceedings, the Investigating Commissioner
issued a Report and Recommendation,20which recommended the penalty of
censure against the respondents. The Investigating Commissioner pointed
out that Atty. Bayot and the complainant had a lawyer-client relationship
notwithstanding that the former was not the counsel of record in the case.
That his admission that he was a collaborating counsel was sufficient to
constitute a lawyer client relationship. Moreover, considering that Atty.
Bayot initially received the amount ofP12,000.00 from the complainant, the
Investigating Commissioner opined that he can no longer deny that he was
the lawyer of the complainant. The Investigating Commissioner further found
that: Parenthetically, Respondents had asked and demanded prompt
payment of their attorneys fees or appearance fees and even asked for
amounts for dubious purposes yet they, just the same, performed their
duties to their clients leisurely and lethargically. Worse, when the trusting
Complainant had noticed that his case was headed for disaster and wanted
Respondents to explain their obviously slothful and listless services, they
disappeared or became evasive thus fortifying the conclusion that they
indeed have performed and carried out their duties to Complainant way
below the standards set by the Code of [P]rofessional
Responsibility.21 Nevertheless, the Investigating Commissioner found that the
complainant failed to prove that he indeed suffered injury as a result of the
respondents conduct and, accordingly, should only be meted the penalty of
censure.
Findings of the IBP Board of Governors
On March 20, 2013, the IBP Board of Governors issued a Resolution,22 which
adopted and approved the recommendation of the Investigating
Commissioner, albeit with the modification that the penalty imposed upon
Atty. Espejo and Atty. Bayot was increased from censure to suspension from
the practice of law for a period of one year.
Atty. Bayot moved to reconsider the Resolution dated March 20, 2013 issued
by the IBP Board of Governors.23The complainant likewise filed a motion for
reconsideration, asking the IBP Board of Governors to order the respondents
to refund to him the amount he paid to the respondents.24 In the meantime,
Atty. Espejo passed away.25
On March 22, 2014, the IBP Board of Governors issued a Resolution,26 which
dismissed the case insofar as Atty. Espejo in view of her demise. The IBP
Board of Governors affirmed Atty. Bayots suspension from the practice of
law for a period of one year.
On December 3, 2014, the Court issued a Resolution,27 which, inter alia,
considered the case closed and terminated as to Atty. Espejo on account of
her death. Accordingly, the Courts disquisition in this case would only be
limited to the liability of Atty. Bayot.
The Issue
The issue in this case is whether Atty. Bayot violated the Code of Professional
Responsibility, which would warrant the imposition of disciplinary sanction.
Ruling of the Court
After a thorough perusal of the respective allegations of the parties and the
circumstances of this case, the Court modifies the findings of the
Investigating Commissioner and the IBP Board of Governors.
Atty. Bayot claimed that he is not the counsel of record of the complainant in
the case before the RTC.1wphi1 He pointed out that he had no part in the
retainer agreement entered into by the complainant and Atty. Espejo. Thus,
Atty. Bayot claimed, the complainant had no cause of action against him.
The Court does not agree.
It is undisputed that Atty. Espejo was the counsel of record in the case that
was filed in the RTC. Equally undisputed is the fact that it was only Atty.
Espejo who signed the retainer agreement. However, the evidence on
record, including Atty. Bayots admissions, points to the conclusion that a
lawyer-client relationship existed between him and the complainant.
Atty. Bayot was the one who prepared the complaint that was filed with the
RTC. He was likewise the one who prepared the motion to serve summons
through publication. He likewise appeared as counsel for the complainant in
the hearings of the case before the RTC. He likewise advised the complainant
on the status of the case.
More importantly, Atty. Bayot admitted that he received P8,000.00, which is
part of the acceptance fee indicated in the retainer agreement, from the
complainant. It is true that it was Atty. Espejo who asked the complainant to
give Atty. Bayot the said amount. However, Atty. Bayot admitted that he
accepted from the complainant the saidP8,000.00 without even explaining
what the said amount was for.
The foregoing circumstances clearly established that a lawyer-client
relationship existed between Atty. Bayot and the complainant.
"Documentary formalism is not an essential element in the employment of
an attorney; the contract may be express or implied. To establish the
relation, it is sufficient that the advice and assistance of an attorney is sought
and received in any matter pertinent to his profession."28 Further,
acceptance of money from a client establishes an attorney-client
relationship.29 Accordingly, as regards the case before the RTC, the
complainant had two counsels Atty. Espejo and Atty. Bayot.
The Code of Professional Responsibility provides that:
CANON 16 A LAWYER SHALL HOLD IN TRUST ALL MONEYS AND PROPERTIES
OF HIS CLIENTTHAT MAY COME INTO HIS POSSESSION.
Rule 16.01 A lawyer shall account for all money or property collected or
received for or from the client.
Rule 16.02 A lawyer shall keep the funds of each client separate and apart
from his own and those of others kept by him.
13
xxxx
CANON 18 A LAWYER SHALL SERVE HIS CLIENT WITH COMPETENCE AND
DILIGENCE. x x x x
Rule 18.03 A lawyer shall not neglect a legal matter entrusted to him, and
his negligence in connection therewith shall render him liable.
Rule 18.04 A lawyer shall keep the client informed of the status of his case
and shall respond within a reasonable time to the clients request for
information.
Accordingly, Atty. Bayot owes fidelity to the cause of the complainant and is
obliged to keep the latter informed of the status of his case. He is likewise
bound to account for all money or property collected or received from the
complainant. He may be held administratively liable for any inaptitude or
negligence he may have had committed in his dealing with the complainant.
In Del Mundo v. Capistrano,30 the Court emphasized that:
Indeed, when a lawyer takes a clients cause, he covenants that he will
exercise due diligence in protecting the latters rights. Failure to exercise that
degree of vigilance and attention expected of a good father of a family makes
the lawyer unworthy of the trust reposed on him by his client and makes him
answerable not just to his client but also to the legal profession, the courts
and society. His workload does not justify neglect in handling ones case
because it is settled that a lawyer must only accept cases as much as he can
efficiently handle.
Moreover, a lawyer is obliged to hold in trust money of his client that may
come to his possession.1wphi1 As trustee of such funds, he is bound to
keep them separate and apart from his own. Money entrusted to a lawyer
for a specific purpose such as for the filing and processing of a case if not
utilized, must be returned immediately upon demand. Failure to return gives
rise to a presumption that he has misappropriated it in violation of the trust
reposed on him. And the conversion of funds entrusted to him constitutes
gross violation of professional ethics and betrayal of public confidence in the
legal profession.31 (Citations omitted)
Nevertheless, the administrative liability of a lawyer for any infractions of his
duties attaches only to such circumstances, which he is personally
accountable for. It would be plainly unjust if a lawyer would be held
accountable for acts, which he did not commit.
The Investigating Commissioners findings, which was adopted by the IBP
Board of Governors, did not make a distinction as to which specific acts or
omissions the respondents are each personally responsible for. This is
inequitable since either of the respondents may not be held personally liable
for the infractions committed by the other.
Atty. Bayot may not be held liable for the failure to account for and return
the excess of the P50,000.00 which was paid by the complainant for the filing
fees. The evidence on record shows that it was Atty. Espejo alone who
received the said amount and that she was the one who paid the filing fees
when the complaint was filed with the RTC. That Atty. Bayot had no
knowledge of the said amount paid by the complainant for the filing fees is
even admitted by the complainant himself during the proceedings before the
IBP-CBD, viz:
ATTY. BAYOT: So, Atty. Espejo ask you for P50,000[.00] as filing
fee.
MR. RUBY: Admitted.
ATTY. BAYOT: That when he asked you about that, Atty. Bayot was
not present.
MR. RUBY: Admitted.
xxxx
ATTY. BAYOT: That later on you gave Atty. Espejo
the P50,000[.00].
MR. RUBY: Admitted.
ATTY. BAYOT: That Atty. Bayot was not also present at that time.
MR. RUBY: Admitted.
xxxx
ATTY. BAYOT: That never did Atty. Bayot ask you or followed-up
from you the P50,000[.00] that Atty. Espejo was asking as filing
fee?
MR. RUBY: Admitted.
xxxx
MR. RUBY: You have nothing to do with the P50,000[.00] that was
Atty. Espejo.32
Further, in her Answer, Atty. Espejo admitted that she was the one who
failed to account for the filing fees, alleging that the files in her office were
destroyed by flood. Likewise, the demand letters written by the complainant,
which were seeking the accounting for the P50,000.00 filing fee, were all
solely addressed to Atty. Espejo. Clearly, Atty. Bayot may not be held
administratively liable for the failure to account for the filing fees.
Atty. Bayot cannot also be held liable for the P20,000.00 which Atty. Espejo
asked from the complainant for "representation fee." The complainant failed
to adduce any evidence that would establish that Atty. Bayot knew of and
came into possession of the said amount paid by the complainant.
On the other hand, Atty. Bayot is legally entitled to the P8,000.00 he received
from the complainant on September 23, 2009, the same being his share in
the acceptance fee agreed to by the complainant in the retainer agreement.
He is likewise legally entitled to the P4,000.00 from the complainant on even
date as it is the payment for his appearance fee in the hearing for the
issuance of a TRO on September 22, 2009.
However, Atty. Bayot is not entitled to the P4,000.00 which the complainant
deposited to his bank account on October 23, 2009. Atty. Bayot admitted
that there was no hearing scheduled on the said date; their motion to serve
summons through publication was not included in the RTCs calendar that
day. Accordingly, Atty. Bayot is obliged to return the said amount to the
complainant.
As regards the complainants charge of gross neglect against Atty. Bayot, the
Court finds the same unsubstantiated. The Court has consistently held that in
suspension or disbarment proceedings against lawyers, the lawyer enjoys the
presumption of innocence, and the burden of proof rests upon the
complainant to prove the allegations in his complaint.33
A lawyer may be disbarred or suspended for gross misconduct or for
transgressions defined by the rules as grounds to strip a lawyer of
professional license. Considering, however, the serious consequences of
either penalty, the Court will exercise its power to disbar or suspend only
upon a clear, convincing, and satisfactory proof of misconduct that seriously
affects the standing of a lawyer as an officer of the court and as member of
the bar.
The complainant merely alleged that, after the hearing on the motion to
serve summons through publication, the respondents had "made themselves
scarce" and failed to update him on the status of the case before the RTC.
However, other than his bare allegations, the complainant failed to present
any evidence that would show that Atty. Bayot was indeed remiss in his
duties to the complainant.
However, the complainants November 4, 2009 letter34 to Atty. Espejo tells a
different story. In the said letter, the complainant asked Atty. Espejo to
14
withdraw as being the counsel of record in the case before the RTC in favor
of Atty. Bayot since he was the one who actually prepared the pleadings and
attended the hearings of their motions. In any case, the charge of neglect
against Atty. Bayot was premature, if not unfair, considering that, at that
time, the case before the RTC was still in the early stages; the pre-trial and
trial have not even started yet. That they lost their bid for the issuance of a
TRO is not tantamount to neglect on the part of Atty. Bayot.
However, Atty. Bayot is not entirely without fault. This administrative
complaint was brought about by his intervention when the complainant
sought the legal services of Atty. Espejo. Atty. Bayot undertook to prepare
the complaint to be filed with the RTC and the motion to serve summons
through publication, attended the hearings, and advised the complainant as
to the status of the case without formally entering his appearance as counsel
of record. He was able to obtain remuneration for his legal services sans any
direct responsibility as to the progress of the case. Atty. Bayot is reminded to
be more circumspect in his dealings with clients. WHEREFORE, Atty. Rudolph
Dilla Bayot is hereby ADMONISHED to exercise more prudence and
judiciousness in dealing with his clients. He is also ordered to return to
Michael Ruby within fifteen (15) days from notice the amount of Four
Thousand Pesos (P4,000.00) representing his appearance fee received from
the latter on October 23, 2009 with a warning that failure on his part to do so
will result in the imposition of stiffer disciplinary action.
SO ORDERED.
A.C. No. 9537 June 10, 2013
(Formerly CBD Case No. 09-2489)
DR. TERESITA LEE, Complainant,
vs.
ATTY. AMADOR L. SIMANDO, Respondent.
DECISION
PERALTA, J.:
Before us is a Petition for Disbarment1 dated July 21, 2009 filed by Dr.
Teresita Lee (Dr. Lee) against respondent Atty. Amador L. Simando (Atty.
Simando) before the Integrated Bar of the Philippines-Commission on Bar
Discipline (IBP-CBD), docketed as CBD Case No. 09-2489, now A.C. No. 9537,
for violation of the Code of Judicial Ethics of Lawyers.
The facts of the case, as culled from the records, are as follows:
Atty. Simando was the retained counsel of complainant Dr. Lee from
November 2004 until January 8, 2008, with a monthly retainer fee of Three
Thousand Pesos (Php3,000.00).2
Sometime during the above-mentioned period, Atty. Simando went to see
Dr. Lee and asked if the latter could help a certain Felicito M. Mejorado
(Mejorado) for his needed funds. He claimed that Mejorado was then
awaiting the release of his claim for informer's reward from the Bureau of
Customs. Because Dr. Lee did not know Mejorado personally and she claimed
to be not in the business of lending money, the former initially refused to
lend money. But Atty. Simando allegedly persisted and assured her that
Mejorado will pay his obligation and will issue postdated checks and sign
promissory notes. He allegedly even offered to be the co-maker of Mejorado
and assured her that Mejorado's obligation will be paid when due. Atty.
Simando was quoted saying: "Ipapahamak ba kita, kliyente kita"; "Sigurado
ito, kung gusto mo, gagarantiyahan ko pa ito, at pipirma din ako"; "Isang
buwan lang, at hindi hihigit sa dalawang buwan ito, bayad ka na."3
Due to Atty. Simando's persistence, his daily calls and frequent visits to
convince Dr. Lee, the latter gave in to her lawyer's demands, and finally
agreed to give Mejorado sizeable amounts of money. Respondent acted as
co-maker with Mejorado in various cash loans, to wit:4
Date: Amount
November 11, 2006 Php 400,000.00
November 24, 2006 200,000.00
November 27, 2006 400,000.00
December 7, 2006 200,000.00
December 13, 2006 200,000.00
Total: Php1,400,000.00
When the said obligation became due, despite Dr. Lee's repeated demands,
Mejorado failed and refused to comply with his obligation. Since Atty.
Simando was still her lawyer then, Dr. Lee instructed him to initiate legal
action against Mejorado. Atty. Simando said he would get in touch with
Mejorado and ask him to pay his obligation without having to resort to legal
action. However, even after several months, Mejorado still failed to pay Dr.
Lee, so she again asked Atty. Simando why no payment has been made yet.
Dr. Lee then reminded Atty. Simando that he was supposed to be the co-
maker of the obligation of Mejorado, to which he replied: "Di kasuhan din
ninyo ako!"5
Despite complainant's repeated requests, respondent ignored her and failed
to bring legal actions against Mejorado. Thus, in January 2008, complainant
was forced to terminate her contract with Atty. Simando.
Subsequently, complainant's new lawyer, Atty. Gilbert Morandarte, sent a
demand letter dated June 13, 2008 to Atty. Simando in his capacity as the co-
maker of some of the loans of Mejorado.
In his Letter dated June 30, 2008, respondent denied his liability as a co-
maker and claimed that novation had occurred because complainant had
allegedly given additional loans to Mejorado without his knowledge.6
Dr. Lee then accused Atty. Simando of violating the trust and confidence
which she gave upon him as her lawyer, and even took advantage of their
professional relationship in order to get a loan for his client. Worse, when
the said obligation became due, respondent was unwilling to help her to
favor Mejorado. Thus, the instant petition for disbarment against Atty.
Simando.
On August 12, 2009, the IBP-CBD ordered respondent to submit his Answer
on the complaint against him.7
In his Answer8 dated September 17, 2009, Atty. Simando claimed that
complainant, who is engaged in lending money at a high interest rate, was
the one who initiated the financial transaction between her and Mejorado.
He narrated that complainant asked him if it is true that Mejorado is his
client as she found out that Mejorado has a pending claim for informer's
reward with the Bureau of Customs. When he affirmed that Mejorado is his
client, complainant signified that she is willing to give money for Mejorado's
financial needs while awaiting for the release of the informer's reward.
Eventually, parties agreed that Mejorado will pay double the amount and
that payment shall be made upon receipt by Mejorado of the payment of his
claim for informer's reward.9
Meanwhile, Atty. Simando stressed that Dr. Lee gave Mejorado a total of
Php700,000.00 as an investment but he signed as co-maker in all the receipts
showing double the amount or Php1,400,000.00.10
Respondent claimed that complainant is a money-lender exacting high
interest rates from borrowers.11 He narrated several instances and civil cases
where complainant was engaged in money-lending where he divulged that
even after defendants had already paid their loan, complainant still persists
in collecting from them.12Respondent asserted that he knew of these
transactions, because he was among the four lawyers who handled
complainant's case.13
Respondent averred that from the time that Mejorado and Dr. Lee had
become close to each other, the latter had given Mejorado additional
investments and one (1) Silverado Pick-up at the price of P500,000.00 and
fifty (50) sacks of old clothings. He claimed that the additional investments
made by Dr. Lee to Mejorado were given without his knowledge.
15
Atty. Simando further alleged that with Dr. Lee's investment of around P2
Million which included the Silverado Pick-up and the fifty (50) sacks of old
clothings, the latter required Mejorado to issue five (5) checks with a total
value of P7,033,500.00, an amount more than the actual value which
Mejorado received.14
Atty. Simando added that while Dr. Lee and Mejorado agreed that the issued
checks shall be presented to the bank only upon payment of his informer's
reward, Dr. Lee presented the checks to the bank despite being aware that
Mejorado's account had no funds for said checks. Atty. Simando further
denied that he refused to take legal action against Mejorado. He claimed that
complainant never instructed him to file legal action, since the latter knew
that Mejorado is obligated to pay only upon receipt of his informer's reward.
Finally, Atty. Simando insisted that he did not violate their lawyerclient
relationship, since Dr. Lee voluntarily made the financial investment with
Mejorado and that he merely introduced complainant to Mejorado. He
further claimed that there is no conflict of interest because he is Mejorado's
lawyer relative to the latter's claim for informer's reward, and not
Mejorado's lawyer against Dr. Lee. He reiterated that there is no conflicting
interest as there was no case between Mejorado and Dr. Lee that he is
handling for both of them.15
In her Reply dated October 30, 2009, Dr. Lee denied that what she entered
into was a mere investment. She insisted that she lent the money to
Mejorado and respondent, in his capacity as co-maker and the transaction
was actually a loan.16 To prove her claim, Dr. Lee submitted the written loan
agreements/receipts which categorically stated that the money received was
a loan with due dates, signed by Mejorado and respondent as co-maker.17She
further claimed that she did not know Mejorado and it was respondent who
brought him to her and requested her to assist Mejorado by lending him
money as, in fact, respondent even vouched for Mejorado and agreed to sign
as co-maker.
Complainant further emphasized that what she was collecting is the payment
only of the loan amounting to One Million Four Hundred Thousand Pesos
(Php1,400,000.00) which respondent had signed as co-maker. Thus,
respondent's claim that his obligation was already extinguished by novation
holds no water, since what was being collected is merely his obligation
pertaining to the loan amounting to Php1,400,000.00 only, and nothing
more.
Finally, complainant lamented that respondent, in his comments, even
divulged confidential informations he had acquired while he was still her
lawyer and even used it against her in the present case, thus, committing
another unethical conduct. She, therefore, maintained that respondent is
guilty of violating the lawyer-client confidentiality rule.
Both parties failed to appear during the mandatory conference on January
15, 2010. Both parties requested for resetting of the mandatory conference,
however, both failed to agree on a certain date. Hence, the IBP, so as not to
delay the disposition of the complaint, terminated the mandatory conference
and instead required the parties to submit their respective position papers. 18
On March 18, 2010, the IBP-CBD found Atty. Simando guilty of violating the
Code of Professional Responsibility. It recommended that respondent be
suspended from the practice of law for six (6) months.
On December 29, 2010, the IBP Board of Governors adopted and approved
the Report and Recommendation of the IBP-CBD to suspend Atty. Simando
from the practice of law for a period of six (6) months.
Respondent moved for reconsideration.
On March 10, 2012, the IBP Board of Governors granted respondent's motion
for reconsideration for lack of sufficient evidence to warrant the penalty of
suspension. The Resolution dated December 29, 2010 was reversed and the
case against respondent was dismissed.
RULING
We reverse the ruling of the IBP Board of Governors.
Jurisprudence has provided three tests in determining whether a lawyer is
guilty of representing conflicting interest:
One test is whether a lawyer is duty-bound to fight for an issue or claim in
behalf of one client and, at the same time, to oppose that claim for the other
client. Thus, if a lawyers argument for one client has to be opposed by that
same lawyer in arguing for the other client, there is a violation of the rule.
Another test of inconsistency of interests is whether the acceptance of a new
relation would prevent the full discharge of the lawyers duty of undivided
fidelity and loyalty to the client or invite suspicion of unfaithfulness or
double-dealing in the performance of that duty. Still another test is whether
the lawyer would be called upon in the new relation to use against a former
client any confidential information acquired through their connection or
previous employment.19
In the instant case, we find substantial evidence to support respondent's
violation of the above parameters, as established by the following
circumstances on record:
First, it is undisputed that there was a lawyer-client relationship between
complainant and Atty. Simando as evidenced by the retainer fees received by
respondent and the latter's representation in certain legal matters pertaining
to complainant's business;
Second, Atty. Simando admitted that Mejorado is another client of him albeit
in a case claiming rewards against the Bureau of Customs;
Third, Atty. Simando admitted that he was the one who introduced
complainant and Mejorado to each other for the purpose of entering into a
financial transaction while having knowledge that complainant's interests
could possibly run in conflict with Mejorado's interests which ironically such
client's interests, he is duty-bound to protect;
Fourth, despite the knowledge of the conflicting interests between his two
clients, respondent consented in the parties' agreement and even signed as
co-maker to the loan agreement;
Fifth, respondent's knowledge of the conflicting interests between his two
clients was demonstrated further by his own actions, when he:
(a) failed to act on Mejorado's failure to pay his obligation to
complainant despite the latter's instruction to do so;
(b) denied liability despite signing as co-maker in the
receipts/promissory notes arising from the loan agreement
between his two clients;
(c) rebutted complainant's allegations against Mejorado and him,
and even divulged informations he acquired while he was still
complainant's lawyer.
Clearly, it is improper for respondent to appear as counsel for one party
(complainant as creditor) against the adverse party (Mejorado as debtor)
who is also his client, since a lawyer is prohibited from representing
conflicting interests. He may not, without being guilty of professional
misconduct, act as counsel for a person whose interest conflict with that of
his present or former client.
Respondent's assertion that there is no conflict of interest because
complainant and respondent are his clients in unrelated cases fails to
convince. His representation of opposing clients in both cases, though
unrelated, obviously constitutes conflict of interest or, at the least, invites
suspicion of double-dealing.20 Moreover, with the subject loan agreement
entered into by the complainant and Mejorado, who are both his clients,
readily shows an apparent conflict of interest, moreso when he signed as co-
maker.
Likewise, respondent's argument that the money received was an investment
and not a loan is difficult to accept, considering that he signed as co-maker.
Respondent is a lawyer and it is objectionable that he would sign as co-maker
if he knew all along that the intention of the parties was to engage in a mere
16
investment. Also, as a lawyer, signing as a co-maker, it can be presupposed
that he is aware of the nature of suretyship and the consequences of signing
as co-maker. Therefore, he cannot escape liability without exposing himself
from administrative liability, if not civil liability. Moreover, we noted that
while complainant was able to show proof of receipts of various amounts of
money loaned and received by Mejorado, and signed by the respondent as
co-maker, the latter, however, other than his bare denials, failed to show
proof that the money given was an investment and not a loan.
It must be stressed that the proscription against representation of conflicting
interests finds application where the conflicting interests arise with respect
to the same general matter however slight the adverse interest may be. It
applies even if the conflict pertains to the lawyers private activity or in the
performance of a function in a non-professional capacity. In the process of
determining whether there is a conflict of interest, an important criterion is
probability, not certainty, of conflict.21
We likewise note that respondent offered several excuses in order to avoid
payment of his liability.1wphi1 First, in his Answer to complainant's demand
letter, he claimed there was novation which extinguished his liability;
Secondly, he claimed that the amount received by Mejorado for which he
signed as co-maker was merely an investment and not a loan. Finally, he
alleged that it was agreed that the investment with profits will be paid only
after Mejorado receives the payment for his claim for reward which
complainant violated when she presented the checks for payment
prematurely. These actuations of Atty. Simando do not speak well of his
reputation as a lawyer.22
Finally, we likewise find respondent guilty of violating Rule 21.01 of the Code
of Professional Responsibility.23 In his last-ditch effort to impeach the
credibility of complainant, he divulged informations24 which he acquired in
confidence during the existence of their lawyer-client relationship.
We held in Nombrado v. Hernandez25 that the termination of the relation of
attorney and client provides no justification for a lawyer to represent an
interest adverse to or in conflict with that of the former client. The reason for
the rule is that the clients confidence once reposed cannot be divested by
the expiration of the professional employment. Consequently, a lawyer
should not, even after the severance of the relation with his client, do
anything which will injuriously affect his former client in any matter in which
he previously represented him nor should he disclose or use any of the
client's confidences acquired in the previous relation.
Accordingly, we reiterate that lawyers are enjoined to look at any
representation situation from "the point of view that there are possible
conflicts," and further, "to think in terms of impaired loyalty" that is to
evaluate if his representation in any way will impair loyalty to a client.26
WHEREFORE, premises considered, this Court resolves to ADOPT the findings
and recommendation of the IBP in Resolution No. XIX-20 10-733 suspending
respondent Atty. Amador L. Simando for six ( 6) months from the practice of
law, with a WARNING that a repetition of the same or similar offense will
warrant a more severe penalty.
Let copies of this Decision be furnished all courts, the Office of the Bar
Confidant and the Integrated Bar of the Philippines for their information and
guidance. The Office of the Bar Confidant is DIRECTED to append a copy of
this Decision to respondent's record as member of the Bar.
Atty. Simando is DIRECTED to inform the Court of the date of his receipt of
this Decision so that we can determine the reckoning point when his
suspension shall take effect.
This Decision shall be immediately executory.SO ORDERED.
A.M. No. 258 December 21, 1963
RUFINA BAUTISTA, complainant-petitioner,
vs.
ATTY. BENJAMIN O. BARRIOS, defendant-respondent.BENGZON, C.J.:
Rufina Bautista complains that Atty. Barrios committed malpractice in that
having drafted a deed of partition at her request, and as her attorney, he
afterwards suit to enforce it, refused to appear for her, and what is worse, he
appeared instead as counsel for the other to the deed of partition and
opposed her rights thereunder.
The evidence shows that in August 1955, Rufina Bautista engaged the
services of respondent Atty. Barrios to draft an extra-judicial partition
between Rufina Bautista and her brother and sisters on one side and
Federico Rovero on the other. The deed distributed the conjugal properties
of Rovero and his deceased wife Maria Bautista who was a sister of the
Bautista's and who intestate in 1952. The deed was prepared by said Barrios
and was accordingly signed. Thereafter, in September of the same year,
because Rovero refused to comply the terms of the deed, Rufina Bautista
sued him (Civil Case No, K-689, Capiz Court of First Instance) to deliver the
properties awarded to her in the said extra-judicial partition. She asked
respondent Barrios to represent her; but upon her refusal, Rufina was
compelled to, and did engaged the services of Atty. Artemio S. Arrieta.
Thereafter, Atty. Barrios appeared for Federico Rovero, and opposed the
demand of Rufina Bautista.
In an attempt to clear himself, respondent Barrios declared that it was not
Rufina Bautista who had solicited his services in the preparation of the deed
of partition, but that it was Federico Rovero.
As against the contrary assertions of Rufina Bautista, the defense of Atty.
Barrios cannot prevail, for the reason that he himself in his answer to the
complaint in this Court, admitted that he had prepared the deed "upon the
joint request of Federico Rovero, Rufina Bautista and Fransisco Bautista."
Furthermore, the circumstance that upon refusal of Rovero to comply with
the terms of the deed, Rufina went to ask Barrios to enforce it he admits
Rufina went to see him by filing a complaint against Rovero, strongly
corroborates Rufina's testimony that she had actually engaged his services to
draft the partition. Indeed, when she asked him to file the complaint, and he
refused, he did not tell her that he had been engaged by Rovero to draft the
partition. He merely told her she had no case, and that she was reluctant "to
take up a lost cause."
On this issue of fact, that Solicitor General finds against respondent. And we
agree with said official.
Furthermore, even supposing that, as claimed by Atty. Barrios, he was
employed by both Rovero and the Bautista brothers to draft the partition, it
is doubtful whether he could appear for one as against the other in a
subsequent litigation. At most, if he could appear for one client, it should
be for him who seeks to enforce the partition as drafter. Yet he appeared for
Rovero who sought to avoid compliance with it, asserting that it did not
contain all the terms of the agreement, that it was subject to certain
modifications, etc. Moreover, in his defense of Rovero, he raised issues
which obviously violated Rufina's confidence, because he alleged in behalf
of Rovero that the undisclosed modifications were known to Rufina at the
time of execution of the partition.lawphil.net
The inconsistent positions taken by the respondent coupled with some flimsy
arguments he had advanced1 , do not favorably impress this Court with his
alleged good faith in the matter.
Corrective measures are called for, and, in accordance with the Solicitor
General's recommendation, Atty. Barrios is hereby suspended from the
practice of his profession for a period of two years from the time this
becomes final. So ordered.
A.C. No. 2285 August 12, 1991
MARIA TIANIA complainant,
vs.
ATTY. AMADO OCAMPO, respondent.
A.C. No. 2302 August 12, 1991
17
FELICIDAD LLANOS ANGEL and ALFONSO ANGEL, complainants,
vs.
ATTY. AMADO OCAMPO, respondent.
PER CURIAM:p
These disbarment proceedings against Attorney Amado Ocampo were filed
by Maria Tiania, docketed as Administrative Case No. 2285, and by Spouses
Felicidad Angel and Alfonso Angel (hereinafter referred to as the Angel
Spouses), docketed as Administrative Case No. 2302.
Both cases were consolidated upon the instance of Atty. Amado Ocampo
who, in his answer, denied the imputations.
The complaints in Adm. Case No. 2285 and Adm. Case No. 2302 were filed on
July 14, 1981 and August 10, 1981, respectively.
On January 27, 1982, after Atty. Ocampo filed his comment, the Court
referred the case to the Solicitor General for investigation, report, and
recommendation as provided, then, by Section 27, Rule 138 of the Rules of
Court. 1
It was only on April 25, 1990, more than eight years later, that the Office of
the Solicitor General returned the entire records of Adm. Cases Nos. 2285
and 2302 with the accompanying complaint for disbarment.
Hence, the administrative complaint for disbarment in both cases was filed.
ADMINISTRATIVE CASE NO. 2285
Maria Tiania claims in her verified complaint that respondent Amado
Ocampo who has been her "retaining (sic) counsel" in all her legal problems
and court cases as early as 1966, has always had her unqualified faith and
confidence.
In 1972, one Mrs. Concepcion Blaylock sued Tiania for ejectment 2 from a
parcel of land described as "Lot 4131, TS-308." Ocampo appeared for Tiania
and also for Blaylock. Tiania confronted Ocampo about this but the latter
reassured Tiania that he will take care of everything and that there was no
need for Tiania to hire a new lawyer since he is still Tiania's lawyer. Ocampo
prepared the answer in the said ejectment case, which Tiania signed. Then
Ocampo made Tiania sign a Compromise Agreement 3 which the latter signed
without reading.
Two years from the submission of the Compromise Agreement, Tiania was
shocked when she received an order to vacate 4 the property in question. To
hold off her ejectment for another two years, Ocampo advised Tiania to pay
him a certain amount for the sheriff. 5
Ocampo denied the charges in detail. Although he handled some legal
problems and executed some notarial deeds for Tiania from 1966-1971,
Tiania had also engaged the services of various counsel to represent her in
several criminal and civil cases, involving violations of municipal ordinances
and estafa. Thus, he could not be the complainant's "retaining counsel" in all
her legal problems and court cases.
Ocampo then insisted that he appeared on behalf of Mrs. Blaylock, and not
as counsel of Tiania, in Civil Case No. 1104-0. He never saw or talked to Tiania
from the time the said civil case was filed up to the pre-trial and as such
could not have discussed with her the complaint, the hiring of another
lawyer, and more so the preparation of the answer in the said case. He
admitted that during the pre-trial of the said case, Tiania showed to him a
document which supported her claim, over the property in question.
Ocampo, after going over the document, expressed his doubts about it
authenticity. This convinced Tiania to sign a Compromise Agreement and to
pay the acquisition cost to Blaylock over a period of six (6) months. 6
But Tiania never fulfilled any of her obligations. She moreover made the
situation worse by selling the contested property to a third party even after
an alias writ of execution had ordered the transfer of the possession of the
disputed property to Blaylock. 7
Significantly, the petition was filed five years after Tiania allegedly suffered
"terrible shock" upon receiving the Notice to Vacate.
Citing Arboleda v. Gatchalian, 8 Ocampo said that the overdue filing of a
complaint against a lawyer should already create a suspicion about the
motives of the complainant or the merit of the complaint.
ADMINISTRATIVE CASE NO. 2302
The Angel spouses, complainants in A.C. No. 2302, allege that sometime in
1972, they sold their house in favor of Blaylock (the same Mrs. Concepcion
Blaylock in A.C. No. 2285) for the amount of seventy thousand pesos,
(P70,000.00). Ocampo (the same respondent Atty. Amado Ocampo), acted as
their counsel and prepared the Deed of Sale of a Residential House and
Waiver of Rights Over a Lot.
With the money paid by Blaylock, the Angel spouses bought another parcel
of land. Again, Ocampo prepared the Deed of Sale which was signed by the
vendor, a certain Laura Dalanan, and the Angel spouses, as the vendees. In
addition, Ocampo allegedly made the Angel spouses sign two (2) more
documents which, accordingly, were made parts of the sale transaction.
Those two (2) documents later turned out to be a Real Estate Mortgage of
the same property purchased from Laura Dalanan and a Promissory
Note, 9 both in favor of Blaylock.
The Angel spouses never realized the nature of the said documents until they
received a complaint naming them as defendants in a collection suit 10 filed
by Ocampo on behalf of the plaintiff, Commercial Corporation of Olongapo, a
firm headed by Blaylock.
The Angel spouses added that Ocampo reassured them that there was no
need for them to engage the services of a new lawyer since he will take care
of everything. Ocampo even appeared as counsel for the Angel spouses in a
civil case 11 they filed sometime in 1976. However, in 1978, a Notice to
Vacate, 12 on the basis of the two (2) documents they signed in 1972, was
served on them.
These acts, the complainants charge, violate the ethics of the legal
profession. They lost their property as a result of the respondent's fraudulent
manipulation, taking advantage of his expertise in law against his own
unsuspecting and trusting clients.
As in the first case, Ocampo presented an elaborate explanation.
Ocampo alleged that it was his client, Mrs. Concepcion Blaylock, who
introduced to him the Angel spouses in 1972. Blaylock wanted Ocampo to
check the background of the Angel spouses in connection with the loan they
were seeking from Blaylock.
In his interview with Mrs. Angel, Ocampo learned that the amount of twenty
thousand pesos (P20,000.00) to be loaned to the Angel spouses from
Blaylock would be used to repurchase the property at 39 Fendler Street,
Olongapo City, which the Angel spouses had originally owned. In turn, the
Angel spouses should sell the same to Blaylock.
Ocampo himself facilitated the transfer by delivering to the complainants the
P20,000.00 for the repurchase of the Fendler property. This in turn was sold
to
Blaylock. 13
Since the sale of the Fendler property would render the Angel spouses
homeless, they suggested to Blaylock that they would need an additional
loan of forty thousand pesos (P40,000.00) to purchase from Laura Dalanan
another property located at #66 Kessing Street, Olongapo City, which was
mortgaged in favor of a certain Salud Jimenez.
To expedite the transfer of the Kessing property from Dalanan to the Angel
spouses, Ocampo himself delivered to Salud Jimenez twenty two thousand
(P22,000.00) pesos from Blaylock in payment of the mortgage debt of
Dalanan. The balance of eighteen thousand (P18,000.00) pesos was then
18
delivered to Mrs. Angel upon the execution of the final documents between
the Angel spouses and Dalanan. 14
Ocampo explained that simultaneously he executed a Real Estate Mortgage
over the Kessing property and a Promissory Note for the Angel spouses in
favor of Blaylock for the amount of seventy-four thousand seventy five
(P74,075.00) pesos. Although only forty thousand (P40,000.00) was received
by Mrs. Angel and Dalanan, the difference between seventy-four thousand
seventy five pesos and forty thousand pesos represented the interests in
advance over a period of five years in which the loan would be paid.
When the monthly amortizations became due, the Angel spouses never paid
any of it despite repeated demands from Blaylock. Blaylock assigned the
promissory note to the Commercial Credit Corporation which later on filed a
civil case against the Angel spouses.
The Angel spouses never filed an answer and were declared in default. Upon
execution, the Kessing property was levied on and sold at public auction
followed by a Notice to Vacate.
Ocampo admits appearing for the Angel spouses in Civil Case No. 1458, filed
July 26, 1976, but only because he had his client Blaylock's interest foremost
in his mind.
Blaylock, through Ocampo, had sued one Benedicto Hermogeno a lessee of
Blaylock's property, in an ejectment case. But before the institution of the
ejectment case, Hermogeno leased out the same premises to Mrs. Angel on
June 14, 1976. Four days later, Hermogeno without the knowledge and
consent of Mrs. Angel, regained possession of the leased premises. Thus,
Ocampo, in filing a complaint against Hermogeno on behalf of Blaylock, was
also doing so for Mrs. Angel.
These explanations notwithstanding, the Solicitor General charged the
respondent Atty. Amado Ocampo with malpractice and gross misconduct
punishable under Section 27 of Rule 138 of the Rules of Court of the
Philippines and violation of his oath of office as an attorney for the following
acts:
a) Administrative Case No. 2285
At the pre-trial of Civil Case No. 11 04-0, the
respondent appeared as counsel for the plaintiff and
while appearing for the same, gave advice and
warnings to the defendant which paved the way for an
amicable settlement and which may have prejudiced
the defendant's rights.
b) Administrative Case No. 2302
(1) Respondent while acting as counsel for Mrs.
Concepcion Blaylock and her Commercial Credit
Corporation; also acted as counsel of the complainant
Mrs. Angel when he prepared the Deed of Sale of a
Residential House and Waiver of Rights Over a Lot for
Mrs. Angel in favor of Zenaida Blaylock, daughter of
Concepcion Blaylock.
(2) Respondent, while acting as counsel for Mrs.
Concepcion Blaylock and her Commercial Credit
Corporation, also acted as counsel of Mrs. Angel when
he proceeded to Cavite and paid Salud Jimenez the
sum of twenty two thousand pesos (P22,000.00) for
Dalanan's Kessing Property.
(3) Respondent was representing conflicting interests
when he simultaneously prepared the Deed of Sale of
the Kessing property in favor of Mrs. Angel and the
Real Estate Mortgage for the same property to be
signed by Mrs. Angel in favor of Mrs. Blaylock and her
Commercial Credit Corporation.
(4) Respondent used Mrs. Angel by pretending to
protect her interest as his client in Civil Case No. 2020-
0, when admittedly he was only "forced to help and
assist Mrs. Angel in said case to protect the property of
Mrs. Blaylock."
Was the respondent guilty of representing conflicting interests?
The specific law applicable in both administrative cases is Rule 15.03 of the
Code of Professional Responsibility which provides:
A lawyer shall not represent conflicting interest except
by written consent of all concerned given after a full
disclosure of the facts.
We prohibit the representation of conflicting interests not only because the
relation of attorney and client is one of trust and confidence of the highest
degree, but also because of the principles of public policy and good taste. An
attorney has the duty to deserve the fullest confidence of his client and
represent him with undivided loyalty. Once this confidence is abused, the
entire profession suffers. 15
The test of the conflict of interest in disciplinary cases against a lawyer is
whether or not the acceptance of a new relation will prevent an attorney
from the full discharge of his duty of undivided fidelity and loyalty to his
client or invite suspicion of unfaithfulness or double-dealing in the
performance thereof. 16 Considering this criterion and applying it to the
present administrative cases, we find no cogent reason to disturb the
findings of the Solicitor General upholding the complaints against the
respondent. Indeed, the aforementioned acts of the respondent in
representing Blaylock, and at the same time advising Tiania, the opposing
party, as in the first administrative case, and once again representing
Blaylock and her interest while handling the legal documents of another
opposing party as in the second case, whether the said actions were related
or totally unrelated, constitute serious misconduct. They are improper to the
respondent's office as attorney.
However, taking into consideration the advanced age of the respondent, who
would have reached seventy three (73) years, as of this date, the Court, while
uncompromisingly firm in its stand against erring lawyers, nonetheless
appreciates the advance years of the respondent in his favor.
WHEREFORE, finding the respondent Atty. Amado Ocampo guilty of
malpractice and gross misconduct in violation of the Code of Professional
Responsibility, we hereby SUSPEND him from the practice of law for a period
of one (1) year.
Let this Decision be spread upon the personal records of the respondent and
copies thereof furnished to all courts and to the Integrated Bar of the
Philippines
A.C. No. 9395 November 12, 2014
DARIA O. DAGING, Complainant,
vs.
ATTY. RIZ TINGALON L. DAVIS, Respondent.
RESOLUTION
DEL CASTILLO, J.:
This administrative complaint for disbarment arose from an Affidavit
Complaint1 filed by Daria O. Daging (complainant) before the Integrated Bar
of the Philippines (IBP), Benguet Chapter,2 against Atty. Riz Tingalon L. Davis
(respondent).
Antecedents
Complainant was the owner and operator of Nashville Country Music
Lounge. She leased from Benjie Pinlac (Pinlac) a building spaGe located at No.
22 Otek St., Baguio City where she operated the bar.
19
Meanwhile, complainant received a Retainer Proposal3 from Davis & Sabling
Law Office signed by respondent and his partner Atty. Amos Saganib Sabling
(Atty. Sabling). This eventually resulted in the signing by the complainant, the
respondent and Atty. Sabling of a Retainer Agreement4 dated March 7, 2005.
Because complainant was delinquent in paying the monthly rentals, Pinlac
terminated the lease. Together with Novie Balageo (Balageo) and
respondent, Pinlac went to complainant's music bar, inventoried all the
equipment therein, and informed her that Balageo would take over the
operation of the bar. Complainant averred that subsequently respondent
acted as business partner of Balageo in operating the bar under her business
name, which they later renamed Amarillo Music Bar.
Complainant likewise alleged that she filed an ejectment case against Pinlac
and Balageo before the Municipal Trial Court in Cities (MTCC), Branch 1,
Baguio City. At that time, Davis & Sabling Law Office was still her counsel as
their Retainer Agreement remained subsisting and in force. However,
respondent appeared as counsel for Balageo in that ejectment case and filed,
on behalf of the latter, an Answer with Opposition to the Prayer for the
Issuance of a Writ of Preliminary Injunction.5
In his Comment,6 respondent denied participation in the takeover or acting
as a business partner of Balageo in the operation of the bar. He asserted that
Balageo is the sole proprietress of the establishment. He insisted that it was
Atty. Sabling, his partner, who initiated the proposal and was in fact the one
who was able to convince complainant to accept the law office as her
retainer. Respondent maintained that he never obtained any knowledge or
information regarding the business of complainant who used to consult only
Atty. Sabling. Respondent admitted though having represented Balageo in
the ejectment case, but denied that he took advantage of the Retainer
Agreement between complainant and Davis and Sabling Law Office. Thus:
3.a Prior to the engagement of the Complainant of the DAVIS and
SABLING LAW OFFICE as her retainer, Novie Balageo was already
one of the Clients of Respondent in several cases;
3.b Sometime in the last week of the month of May 2005, while
Respondent was in his office doing some legal works, Novie
Balageo called up Respondent informing the latter that his
assistance is needed for purposes of conducting an inventory of
all items at the former Nashville Country Music Lounge;
3.c Respondent [asked] Novie Balageo [the purpose of] the
inventory [to which] the latter x xx responded x xx that she
entered into a lease contract with the present administrator of
the building, Benjie Pinlac;
3.d Respondent, to his disbelief requested Novie Balageo to go
[to] the LAW OFFICE for further clarification of the matter.
Thereafter, Respondent was later informed that the business of
Complainant was taken over and operated by Mr. Benjie Pinlac for
seven days. Furthermore, Mr. Benjie Pinlac offered the said place
to Novie Balageo which the latter readily accepted;
3.e [Left] with no recourse, Respondent requested one of his staff
to assist Novie Balageo in conducting an inventory. Furthermore,
Respondent never acted as partner of Novie Balageo in operating
the former Nashville Country Music Lounge;
3.f When Complainant filed the civil case for Ejectment against
Novie Balageo and Benjie Pinlac, Respondent represented the
former thereof without taking advantage of the retainership
contract between the DA VIS and SABLING LAW OFFICE [and]
Complainant as Respondent has no knowledge or information of
any matters related by complainant to Atty. Sabling regarding the
former' s business;
3.g While the Complaint was pending, respondent was xx x
informed by Novie Balageo and Benjie Pinlac of the truth of all
matters x x x which x x x Respondent [was unaware of];
3.h However, for the interest of justice and fair play, x x x
Respondent [deemed it prudent] to xx x withdraw as Counsel for
Novie Balageo. Hence, Respondent filed his Motion to Withdraw
As Counsel. x x x
3.i The civil case was subsequently dismissed for lack of
jurisdiction over the [Complaint's] subject matter. x x x7
On October 15, 2008, the Investigating Commissioner rendered a Report and
Recommendation8 finding respondent guilty of betrayal of his client's trust
and for misuse of information obtained from his client to the disadvantage of
the latter and to the advantage of another person. He recommended that
respondent be suspended from the practice oflaw for a period of one year.
On December 11, 2008, the IBP Board of Governors adopted and approved
the Report and Recommendation of the Investigating Commissioner.9 Upon
motion of the respondent, it reduced the penalty imposed to six months
suspension considering that there is no proof that respondent actually
handled any previous legal matters involving complainant.10
Our Ruling
It is undisputed that complainant entered into a Retainer Agreement dated
March 7, 2005 with respondent's law firm. This agreement was signed by the
respondent and attached to the rollo of this case. And during the subsistence
of said Retainer Agreement, respondent represented and defended Balageo,
who was impleaded as one of the defendants in the ejectment case
complainant filed before the MTCC of Baguio City. In fact, respondent filed
on behalf of said Balageo an Answer with Opposition to the Prayer for the
Issuance of a Writ of Preliminary Injunction dated July 11, 2005. It was only
on August 26, 2005 when respondent withdrew his appearance for Balageo.
Based on the established facts, it is indubitable that respondent transgressed
Rule 15.03 of Canon 15 of the Code of Professional Responsibility.1wphi1 It
provides:
Rule 15.03 -A lawyer shall not represent conflicting interests except by
written consent of all concerned given after a full disclosure of the facts.
"A lawyer may not, without being guilty of professional misconduct, act as
counsel for a person whose interest conflicts with that of his present or
former client."11 The prohibition against representing conflicting interests is
absolute and the rule applies even if the lawyer has acted in good faith and
with no intention to represent conflicting interests.12 In Quiambao v. Atty.
Bamba,13 this Court emphasized that lawyers are expected not only to keep
inviolate the client's confidence, but also to avoid the appearance of
treachery and double-dealing for only then can litigants be encouraged to
entrust their secrets to their lawyers, which is of paramount importance in
the administration of justice.14
Respondent argues that while complainant is a client of Davis & Sabling Law
office, her case is actually handled only by his partner Atty. Sabling. He was
not privy to any transaction between Atty. Sabling and complainant and has
no knowledge of any information or legal matter complainant entrusted or
confided to his law partner. He thus inveigles that he could not have taken
advantage of an information obtained by his law firm by virtue of the
Retainer Agreement. We are not impressed. In Hilado v. David,15 reiterated in
Gonzales v. Atty. Cabucana, Jr.,16this Court held that a lawyer who takes up
the cause of the adversary of the party who has engaged the services of his
law firm brings the law profession into public disrepute and suspicion and
undermines the integrity of justice. Thus, respondent's argument that he
never took advantage of any information acquired by his law finn in the
course of its professional dealings with the complainant, even assuming it to
be true, is of no moment. Undeniably aware of the fact that complainant is a
client of his law firm, respondent should have immediately informed both
the complainant and Balageo that he, as well as the other members of his
law firm, cannot represent any of them in their legal tussle; otherwise, they
would be representing conflicting interests and violate the Code of
Professional Responsibility. Indeed, respondent could have simply advised
both complainant and Balageo to instead engage the services of another
lawyer.
The penalty for representing conflicting interests may either be reprimand or
suspension from the practice of law ranging from six months to two
years.17 We thus adopt the recommendation of the IBP Board of Governors.
20
WHEREFORE, the Court ADOPTS and AFFIRMS the January 15, 2012
Resolution of the Integrated Bar of the Philippines Board of Governors. Atty.
Riz Tingalon L. Davis is found GUILTY of violating Rule 15.03, Canon 15 of the
Code of Professional Responsibility and is hereby SUSPENDED from the
practice of law for a period of six (6) months effective upon receipt of this
Resolution. He is warned that a commission of the same or similar offense in
the future will result in the imposition of a stiffer penalty.
Let a copy of this Resolution be entered into the records of Atty. Riz Tingalon
L. Davis and furnished to the Office of the Clerk of Court, the Office of the Bar
Confidant, the Integrated Bar of the Philippines, and all courts in the
Philippines, for their information and guidance.
Atty. Riz Tingalon L. Davis is DIRECTED to inform the Court of the date of his
receipt of this Resolution.
SO ORDERED.
A.C. No. 10567 February 25, 2015
WILFREDO ANGLO, Complainant,
vs.
ATTY. JOSE MA. V. VALENCIA, ATTY. JOSE MA. J. CIOCON, ATTY. PHILIP Z.
DABAO, ATTY. LILY UYV ALENCIA, ATTY. JOEY P. DE LA PAZ, ATTY. CRIS G.
DIONELA, ATTY. RAYMUNDO T. PANDAN, JR.,* ATTY. RODNEY K.
RUBICA,** and ATTY. WILFRED RAMON M. PENALOSA, Respondents.
DECISION
PERLAS-BERNABE, J.:
This is an administrative case stemming from a complaint-affidavit1 dated
December 4, 2009 filed by complainant Wilfredo Anglo (complainant)
charging respondents Attys. Jose Ma. V. Valencia (Atty. Valencia), Jose Ma. J.
Ciocon (Atty. Ciocon ), Philip Z. Dabao (Atty. Dabao ), Lily Uy-Valencia (Atty.
Uy-Valencia), Joey P. De La Paz (Atty. De La Paz), Cris G. Dionela (Atty.
Dionela), Raymundo T. Pandan, Jr. (Atty. Pandan, Jr.), Rodney K. Rubica (Atty.
Rubica), and Wilfred Ramon M. Penalosa (Atty. Penalosa; collectively,
respondents) of violating the Code of Professional Responsibility (CPR),
specifica1ly the rule against conflict of interest.
The Facts
In his complaint-affidavit, complainant alleged that he availed the services of
the law firm Valencia Ciocon Dabao Valencia De La Paz Dionela Pandan
Rubica Law Office(law firm), of which Attys. Valencia, Ciocon, Dabao, Uy-
Valencia, De La Paz, Dionela, Pandan, Jr., and Rubica were partners, for two
(2) consolidated labor cases2 where he was impleaded as respondent. Atty.
Dionela, a partner of the law firm, was assigned to represent complainant.
The labor cases were terminated on June 5, 2008 upon the agreement of
both parties.3
On September 18, 2009, a criminal case4 for qualified theft was filed against
complainant and his wife by FEVE Farms Agricultural Corporation (FEVE
Farms) acting through a certain Michael Villacorta (Villacorta). Villacorta,
however, was represented by the law firm, the same law office which
handled complainants labor cases. Aggrieved, complainant filed this
disbarment case against respondents, alleging that they violated Rule 15.03,
Canon 15 and Canon 21 of the CPR,5 to wit:
CANON 15 A LAWYER SHALL OBSERVE CANDOR, FAIRNESS AND LOYALTY IN
ALL HIS DEALINGS AND TRANSACTIONS WITH HIS CLIENTS.
xxxx
RULE 15.03 A lawyer shall not represent conflicting interests except by
written consent of all concerned given after a full disclosure of the facts.
xxxx
CANON 21 A LAWYER SHALL PRESERVE THE CONFIDENCES AND SECRETS OF
HIS CLIENT EVEN AFTER THE ATTORNEY-CLIENT RELATION IS TERMINATED.
In their defense,6 respondents admitted that they indeed operated under the
name Valencia Ciocon Dabao Valencia De La Paz Dionela Pandan Rubica Law
Office, but explained that their association is not a formal partnership, but
one that is subject to certain "arrangements." According to them, each
lawyer contributes a fixed amount every month for the maintenance of the
entire office; and expenses for cases, such as transportation, copying,
printing, mailing, and the like are shouldered by each lawyer separately,
allowing each lawyer to fix and receive his own professional fees
exclusively.7 As such, the lawyers do not discuss their clientele with the other
lawyers and associates, unless they agree that a case be handled
collaboratively. Respondents claim that this has been the practice of the law
firm since its inception. They averred that complainants labor cases were
solely and exclusively handled by Atty. Dionela and not by the entire law
firm. Moreover, respondents asserted that the qualified theft case filed by
FEVE Farms was handled by Atty. Pealosa, a new associate who had no
knowledge of complainants labor cases, as he started working for the firm
after the termination thereof.8 Meanwhile, Atty. Dionela confirmed that he
indeed handled complainants labor cases but averred that it was terminated
on June 13, 2008,9 and that complainant did not have any monthly retainer
contract.10 He likewise explained that he did not see the need to discuss
complainants labor cases with the other lawyers as the issue involved was
very simple,11 and that the latter did not confide any secret during the time
the labor cases were pending that would have been used in the criminal case
with FEVE Farms. He also claimed that the other lawyers were not aware of
the details of complainants labor cases nor did they know that he was the
handling counsel for complainant even after the said cases were closed and
terminated.12 The IBPs Report and Recommendation
In a Report and Recommendation13 dated September 26, 2011, the IBP
Commissioner found respondents to have violated the rule on conflict of
interest and recommended that they be reprimandedtherefor, with the
exception of Atty. Dabao, who had died on January 17, 2010.14 The IBP found
that complainant was indeed represented in the labor cases by the
respondents acting together as a law firm and not solely by Atty. Dionela.
Consequently, there was a conflict of interest in this case, as respondents,
through Atty. Pealosa, having been retained by FEVE Farms, created a
connection that would injure complainant in the qualified theft case.
Moreover, the termination of attorney-client relation provides no
justification for a lawyer to represent an interest adverse to or in conflict
with that of the former client.15
In a Resolution16 dated February 12, 2013, the IBP Board of Governors
adopted and approved the IBP Commissioners Report and Recommendation
with modification. Instead of the penalty of reprimand, the IBP Board of
Governors dismissed the case with warning that a repetition of the same or
similar act shall be dealt with more severely.
Complainant filed a motion for reconsideration17 thereof, which the IBP
Board of Governors granted in its Resolution18 dated March 23, 2014 and
thereby (a) set aside its February 12, 2013 Resolution and (b) adopted and
approved the IBP Commissioners Report and Recommendation, with
modification, (1) reprimanding the respondents for violation of the rule on
conflict of interest; (2) dismissing the case against Atty. Dabao in view of his
death; and (3) suspending Atty. Dionela from the practice of law for one year,
being the handling counsel of complainants labor cases.
The Issue Before the Court
The essential issue in this case is whether or not respondents are guilty of
representing conflicting interests in violation of the pertinent provisions of
the CPR.
The Courts Ruling
Rule 15.03, Canon 15 and Canon 21 of the CPR provide:
CANON 15 A LAWYER SHALL OBSERVE CANDOR, FAIRNESS AND LOYALTY IN
ALL HIS DEALINGS AND TRANSACTIONS WITH HIS CLIENTS.
xxxx
21
RULE 15.03 A lawyer shall not represent conflicting interests except by
written consent of all concerned given after a full disclosure of the facts.
xxxx
CANON 21 A LAWYER SHALL PRESERVE THE CONFIDENCES AND SECRETS OF
HIS CLIENT EVEN AFTER THE ATTORNEY-CLIENT RELATIONSHIP IS
TERMINATED.
In Hornilla v. Atty. Salunat,19 the Court explained the concept of conflict of
interest in this wise:
There is conflict of interest when a lawyer represents inconsistent interests
of two or more opposing parties.1wphi1 The test is "whether or not in
behalf of one client, it is the lawyers duty to fight for an issue or claim, but it
is his duty to oppose it for the other client. In brief, if he argues for one
client, this argument will be opposed by him when he argues for the other
client." This rule covers not only cases in which confidential communications
have been confided, but also those in which no confidence has been
bestowed or will be used. Also, there is conflict of interests if the acceptance
of the new retainer will require the attorney to perform an act which will
injuriously affect his first client in any matter in which he represents him and
also whether he will be called upon in his new relation to use against his first
client any knowledge acquired through their connection. Another test of the
inconsistency of interests is whether the acceptance of a new relation will
prevent an attorney from the full discharge of his duty of undivided fidelity
and loyalty to his client or invite suspicion of unfaithfulness or double dealing
in the performance thereof.20
As such, a lawyer is prohibited from representing new clients whose interests
oppose those of a former client in any manner, whether or not they are
parties in the same action or on totally unrelated cases. The prohibition is
founded on the principles of public policy and good taste.21 In this case, the
Court concurs with the IBPs conclusions that respondents represented
conflicting interests and must therefore be held liable. As the records bear
out, respondents law firm was engaged and, thus, represented complainant
in the labor cases instituted against him. However, after the termination
thereof, the law firm agreed to represent a new client, FEVE Farms, in the
filing of a criminal case for qualified theft against complainant, its former
client, and his wife. As the Court observes, the law firms unethical
acceptance of the criminal case arose from its failure to organize and
implement a system by which it would have been able to keep track of all
cases assigned to its handling lawyers to the end of, among others, ensuring
that every engagement it accepts stands clear of any potential conflict of
interest. As an organization of individual lawyers which, albeit engaged as a
collective, assigns legal work to a corresponding handling lawyer, it behooves
the law firm to value coordination in deference to the conflict of interest
rule. This lack of coordination, as respondents law firm exhibited in this case,
intolerably renders its clients secrets vulnerable to undue and even adverse
exposure, eroding in the balance the lawyer-client relationships primordial
ideal of unimpaired trust and confidence. Had such system been
institutionalized, all of its members, Atty. Dionela included, would have been
wary of the above-mentioned conflict, thereby impelling the firm to decline
FEVE Farms subsequent engagement. Thus, for this shortcoming, herein
respondents, as the charged members of the law firm, ought to be
administratively sanctioned. Note that the Court finds no sufficient reason as
to why Atty. Dionela should suffer the greater penalty of suspension. As the
Court sees it, all respondents stand in equal fault for the law firms deficient
organization for which Rule 15.03, Canon 15 and Canon 21 of the CPR had
been violated. As such, all of them are meted with the same penalty of
reprimand, with a stern warning that a repetition of the same or similar
infraction would be dealt with more severely.
As a final point, the Court clarifies that respondents' pronounced liability is
not altered by the fact that the labor cases against complainant had long
been terminated. Verily, the termination of attorney-client relation provides
no justification for a lawyer to represent an interest adverse to or in conflict
with that of the former client. The client's confidence once reposed should
not be divested by mere expiration of professional employment.22
WHEREFORE, respondents Attys. Jose Ma. V. Valencia, Jose Ma. J. Ciocon, Lily
Uy-Valencia, Joey P. De La Paz, Cris G. Dionela, Raymundo T. Pandan, Jr.,
Rodney K. Rubica, and Wilfred Ramon M. Penalosa are found GUILTY of
representing conflicting interests in violation of Rule 15.03, Canon 15 and
Canon 21 of the Code of Professional Responsibility and are therefore
REPRIMANDED for said violations, with a STERN WARNING that a repetition
of the same or similar infraction would be dealt with more severely.
Meanwhile, the case against Atty. Philip Dabao is DISMISSED in view of his
death.
Let a copy of this Resolution be furnished the Office of the Bar Confidant, to
be appended to respondents' personal records as attorneys. Further, let
copies of this Resolution be furnished the Integrated Bar of the Philippines
and the Office of the Court Administrator, which is directed to circulate them
to all courts in the country for their information and guidance.
SO ORDERED.
A.C. No. 10687, July 22, 2015
MABINI COLLEGES, INC. REPRESENTED BY MARCEL N. LUKBAN, ALBERTO I.
GARCIA, JR., AND MA. PAMELA ROSSANA A. APUYA, Complainant, v. ATTY.
JOSE D. PAJARILLO, Respondent.
DECISION
VILLARAMA, JR., J.:
Before us is a verified complaint1 for disbarment against respondent Atty.
Jose D. Pajarillo for allegedly violating Canon 15, Rule 15.03 of the Code of
Professional Responsibility which prohibits a lawyer from representing
conflicting interests and Canon 15 of the same Code which enjoins a lawyer
to observe candor, fairness, and loyalty in all his dealings and transactions
with clients.
The salient facts of the case follow:ChanRoblesVirtualawlibrary
In 1995, the complainant, Mabini Colleges, Inc., had a Board of Trustees
which was divided into two opposing factions. The first faction, called the
Adeva Group, was composed of Romulo M. Adeva, Lydia E. Cacawa, Eleodoro
D. Bicierro, and Pilar I. Andrade. The other faction, called the Lukban Group,
was composed of Justo B. Lukban, Luz I. Garcia, Alice I. Adeva, and Marcel N.
Lukban.
In 1996, the complainant appointed the respondent as its corporate
secretary with a total monthly compensation and honorarium of P6,000.
On March 29, 1999, the Adeva Group issued an unnumbered Board
Resolution which authorized Pilar I. Andrade, the Executive Vice President
and Treasurer of the complainant at that time, and Lydia E. Cacawa, the Vice
President for Administration and Finance, to apply for a loan with the Rural
Bank of Paracale (RBP), Daet Branch, Camarines Norte in favor of the
complainant.
On May 12, 1999, the Lukban Group sent a letter to RBP to oppose the loan
application because the Adeva Group appointed Librado Guerra and Cesar
Echano, who were allegedly not registered as stockholders in the Stock and
Transfer Book of the complainant, as members of the Board of Trustees. The
Lukban Group also alleged that the complainant was having financial
difficulties.
On May 14, 1999, respondent sent a letter to RBP to assure the latter of
complainant's financial capacity to pay the loan.
On July 13, 1999, RBP granted the loan application in the amount of
P200,000 which was secured by a Real Estate Mortgage over the properties
of the complainant.
On September 27, 1999, the Securities and Exchange Commission (SEC)
issued an Order which nullified the appointment of Librado Guerra and Cesar
Echano by the Adeva Group as members of the Board of Trustees of the
complainant. As a result, complainant sent a letter to RBP to inform the latter
of the SEC Order.
On October 19, 1999, RBP sent a letter to the complainant acknowledging
receipt of the SEC Order and informing the latter that the SEC Order was
referred to RBP's legal counsel, herein respondent. The complainant alleged
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that it was only upon receipt of such letter that it became aware that
respondent is also the legal counsel of RBP.
On April 18, 2000, complainant and RBP increased the loan to P400,000.
On April 23, 2002, RBP moved to foreclose the Real Estate Mortgage.
On May 28, 2002, complainant filed a complaint for Annulment of Mortgage
with a Prayer for Preliminary Injunction against RBP. Respondent entered his
appearance as counsel for RBP.
On September 2, 2011, complainant filed the present complaint for
disbarment against the respondent for allegedly representing conflicting
interests and for failing to exhibit candor, fairness, and loyalty.
Respondent raised three defenses against the complaint for disbarment.
First, respondent argued that Marcel N. Lukban, Alberto I. Garcia Jr., and Ma.
Pamela Rossana Apuya cannot represent the complainant in this disbarment
case because they were not duly authorized by the Board of Directors to file
the complaint. Second, respondent claimed that he is not covered by the
prohibition on conflict of interest which applies only to the legal counsel of
complainant. Respondent argued that he merely served as the corporate
secretary of complainant and did not serve as its legal counsel. Third,
respondent argued that there was no conflict of interest when he
represented RBP in the case for annulment of mortgage because all the
documents and information related to the loan transaction between RBP and
the complainant were public records. Thus, respondent claimed that he
could not have taken advantage of his position as the mere corporate
secretary of the complainant.
On February 14, 2013, the Investigating Commissioner issued a Report and
Recommendation2 finding respondent guilty of representing conflicting
interests and recommending that respondent be suspended from the
practice of law for at least one year. The Investigating Commissioner noted
that respondent appeared for RBP in the case for annulment of mortgage
filed by his former client, the complainant herein. The Investigating
Commissioner cited cash vouchers3 from 1994 to 2001 showing that
respondent was paid by complainant for his retained legal services.
According to the Investigating Commissioner, these vouchers debunk
respondent's claim that the complainant merely appointed him as its
corporate secretary. The Investigating Commissioner also held that the
personality of complainant's representatives to file this administrative case is
immaterial since proceedings for disbarment, suspension or discipline of
attorneys may be taken by the Supreme Court motu proprio or by the
Integrated Bar of the Philippines (IBP) upon the verified complaint of any
person.
On June 21, 2013, the Board of Governors of the IBP issued Resolution No.
XX-2013-7704 which affirmed the findings of the Investigating Commissioner
and imposed a penalty of suspension from the practice of law for one year
against respondent.
On May 3, 2014, the Board of Governors of the IBP issued Resolution No. XXI-
2014-2905 which denied the motion for reconsideration filed by respondent.
The issue in this case is whether respondent is guilty of representing
conflicting interests when he entered his appearance as counsel for RBP in
the case for annulment of mortgage filed by complainant against RBP.
We rule in the affirmative. We thus affirm the Report and Recommendation
of the Investigating Commissioner, and Resolution Nos. XX-2013-770 and XXI-
2014-290 of the IBP Board of Governors. Indeed, respondent represented
conflicting interests in violation of Canon 15, Rule 15.03 of the Code of
Professional Responsibility which provides that "[a] lawyer shall not
represent conflicting interests except by written consent of all concerned
given after a full disclosure of the facts."
This rule prohibits a lawyer from representing new clients whose interests
oppose those of a former client in any manner, whether or not they are
parties in the same action or on totally unrelated cases.6 Based on the
principles of public policy and good taste, this prohibition on representing
conflicting interests enjoins lawyers not only to keep inviolate the client's
confidence, but also to avoid the appearance of treachery and double-
dealing for only then can litigants be encouraged to entrust their secrets to
their lawyers, which is of paramount importance in the administration of
justice.7 In Maturan v. Gonzales8 we further explained the rationale for the
prohibition:chanRoblesvirtualLawlibrary
The reason for the prohibition is found in the relation of attorney and client,
which is one of trust and confidence of the highest degree. A lawyer
becomes familiar with all the facts connected with his client's case. He learns
from his client the weak points of the action as well as the strong ones. Such
knowledge must be considered sacred and guarded with care. No
opportunity must be given him to take advantage of the client's secrets. A
lawyer must have the fullest confidence of his client. For if the confidence is
abused, the profession will suffer by the loss thereof.
Meanwhile, in Hornilla v. Salunat,9 we explained the test to determine the
existence of conflict of interest:chanRoblesvirtualLawlibrary
There is conflict of interest when a lawyer represents inconsistent interests
of two or more opposing parties. The test is "whether or not in behalf of one
client, it is the lawyer's duty to fight for an issue or claim, but it is his duty to
oppose it for the other client. In brief, if he argues for one client, this
argument will be opposed by him when he argues for the other client." This
rule covers not only cases in which confidential communications have been
confided, but also those in which no confidence has been bestowed or will be
used. Also, there is conflict of interests if the acceptance of the new retainer
will require the attorney to perform an act which will injuriously affect his
first client in any matter in which he represents him and also whether he will
be called upon in his new relation to use against his first client any
knowledge acquired through their connection. Another test of the
inconsistency of interests is whether the acceptance of a new relation will
prevent an attorney from the full discharge of his duty of undivided fidelity
and loyalty to his client or invite suspicion of unfaithfulness or double dealing
in the performance thereof.
The rule prohibiting conflict of interest applies to situations wherein a lawyer
would be representing a client whose interest is directly adverse to any of his
present or former clients.10 It also applies when the lawyer represents a
client against a former client in a controversy that is related, directly or
indirectly, to the subject matter of the previous litigation in which he
appeared for the former client.11This rule applies regardless of the degree of
adverse interests.12 What a lawyer owes his former client is to maintain
inviolate the client's confidence or to refrain from doing anything which will
injuriously affect him in any matter in which he previously represented
him.13 A lawyer may only be allowed to represent a client involving the same
or a substantially related matter that is materially adverse to the former
client only if the former client consents to it after
consultation.14chanrobleslaw
Applying the foregoing to the case at bar, we find that respondent
represented conflicting interests when he served as counsel for RBP in the
case for annulment of mortgage filed by the complainant, respondent's
former client, against RBP.
The finding of the Investigating Commissioner that respondent was
compensated by complainant for his retained legal services is supported by
the evidence on record, the cash vouchers from 1994 to 2001. Clearly,
complainant was respondent's former client. And respondent appeared as
counsel of RBP in a case filed by his former client against RBP. This makes
respondent guilty of representing conflicting interests since respondent
failed to show any written consent of all concerned (particularly the
complainant) given after a full disclosure of the facts representing conflicting
interests.15chanrobleslaw
We also note that the respondent acted for the complainant's interest on the
loan transaction between RBP and the complainant when he sent a letter
dated May 14, 1999 to RBP to assure the latter of the financial capacity of
the complainant to pay the loan. But as counsel for RBP in the case for
annulment of mortgage, he clearly acted against the interest of the
complainant, his former client.
Contrary to the respondent's claim, it is of no moment that all the
documents and information in connection with the loan transaction between
RBP and the complainant were public records. In Hilado v. David,16 we laid
down the following doctrinal pronouncements:chanRoblesvirtualLawlibrary
The principle which forbids an attorney who has been engaged to represent
a client from thereafter appearing on behalf of the client's opponent applies
equally even though during the continuance of the employment nothing of a
confidential nature was revealed to the attorney by the client. (Christian vs.
Waialua Agricultural Co., 30 Hawaii, 553, Footnote 7, C. J. S., 828.)
Where it appeared that an attorney, representing one party in litigation, had
23
formerly represented the adverse party with respect to the same matter
involved in the litigation, the court need not inquire as to how much
knowledge the attorney acquired from his former client during that
relationship, before refusing to permit the attorney to represent the adverse
party. (Brown vs. Miller, 52 App. D. C. 330; 286, F. 994.)

In order that a court may prevent an attorney from appearing against a

former client, it is unnecessary that the court ascertain in detail the extent to
which the former client's affairs might have a bearing on the matters
involved in the subsequent litigation on the attorney's knowledge thereof.
(Boyd vs. Second Judicial Dist. Court, 274 P., 7; 51 Nev., 264.)

This rule has been so strictly enforced that it has been held that an attorney,
on terminating his employment, cannot thereafter act as counsel against his
client in the same general matter, even though, while acting for his former
client, he acquired no knowledge which could operate to his client's
disadvantage in the subsequent adverse employment. (Pierce vs. Palmer
[1910], 31 R. I., 432; 77 Atl., 201, Ann. Cas., 1912S, 181.)
Thus, the nature and extent of the information received by the lawyer from
his client is irrelevant in determining the existence of conflict of interest.

Finally, we agree with the Investigating Commissioner that a complaint for

disbarment is imbued with public interest which allows for a liberal rule on
legal standing. Under Section 1, Rule 139-B of the Rules of Court,
"[proceedings for the disbarment, suspension or discipline of attorneys may
be taken by the Supreme Court motu proprio, or by the Integrated Bar of the
Philippines (IBP) upon the verified complaint of any person." Thus, in the
present case, we find that Marcel N. Lukban, Alberto I. Garcia Jr., and Ma.
Pamela Rossana A. Apuya can institute the complaint for disbarment even
without authority from the Board of Directors of the complainant.

WHEREFORE, premises considered, Resolution No. XX-2013-770 and

Resolution No. XXI-2014-290 of the IBP Board of Governors imposing a
penalty of suspension from the practice of law for one year against
respondent Atty. Jose D. Pajarillo are hereby AFFIRMED.

SO ORDERED.cralawlawlibrary

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